SDQX and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 1819
•4 September 2025
SDQX and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1819 (4 September 2025)
Applicant:SDQX
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10260
Tribunal:General Member S Evans
Place:Sydney
Date:4 September 2025
Decision:The Tribunal affirms the decision under review.
............................[SGD]............................................
General Member S Evans
Catchwords
MIGRATION – citizen of Singapore – protection visa application – Applicant does not satisfy section 5H(1) the Migration Act 1958 – complementary protection provision in section 36(2)(aa) – serious non-political crime before entering Australia – ineligibility provisions section 36(2C) apply – ineligible to be granted a protection visa – decision affirmed
Legislation
Migration Act 1958 (Cth)
Extradition Act 1988 (Cth)Cases
GWRV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 39
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014 HCA 26] ZVYZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28Secondary Materials
1951 Convention Relating to the Status of Refugees: art. 1F(b)
Complementary Protection Guidelines 3.7.1.3
The Refugee Law Guidelines 3.21.4.1.
Singapore Statutes OnlineStatement of Reasons
INTRODUCTION
SDQX (the Applicant) is a citizen of Singapore who arrived in Australia in December 2006 as the holder of a visitor visa. On 29 March 2024, he applied for a Protection (Class XA) (subclass 866) visa (protection visa). His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) on 9 December 2024. The Applicant has applied to the Tribunal for review of the delegate’s decision (the reviewable decision).
For the reasons that follow, the reviewable decision will be affirmed.
BACKGROUND AND LEGISLATION
The relevant legislation for grant of a protection visa is found in the Migration Act 1958 (Cth) (Migration Act). Section 5H(1) of the Migration Act defines ‘refugee’ and relevantly provides:
(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:
(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; …
Note: For the meaning of well‑founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non‑political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
To be granted a protection visa, non-citizens must satisfy both criteria at s36(1B)-(1C) of the Migration Act, and at least one of the criteria in s36(2) of the Migration Act.
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Section 36(2) of the Act relevantly provides:
(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; …
In the reviewable decision, the delegate did not accept that the Applicant was a refugee as defined in s5H(1) of the Migration Act and was not a person in respect of whom Australia has protection obligations as provided for in s36(2)(a).[1] However, the delegate was satisfied he met the complementary protection criterion provided in s 36(2)(aa).
[1] Hearing Book 1, p. 34.
Not all people who otherwise satisfy the complementary protection criteria provided in s36(2)(aa) are entitled to be granted protection visas. Section 36(2C) provides that a non-citizen may be taken not to satisfy the criterion in s 36(2)(aa). The ineligibility provision in Subsection 36(2C)(a)(ii) of the Act is enlivened if a decision-maker finds there are serious reasons for considering the visa applicant committed a serious non-political crime before entering Australia (the ineligibility provision).
The ineligibility provisions are consistent under both the refugee and complementary protection criterion pursuant to s 5H(2)(b) and s36(2C)(a)(ii) of the Act. This exclusion mirrors Article 1F(b) of the Refugees Convention, which states:[2]
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) …
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) …
[2] 1951 Convention Relating to the Status of Refugees.
In the reviewable decision, the delegate found that the Applicant had committed a serious, non-political crime before entering Australia and was ineligible for grant of a protection visa by operation of s 36(2C)(a)(ii).
The Applicant’s claims for protection included fears relating to his previous work with an international drug syndicate based largely in Singapore and Malaysia.[3] The Applicant also claimed that he faced a real risk of significant harm by way of corporal punishment should he return to Singapore. In the reviewable decision, the delegate accepted the Applicant faced a real risk of suffering significant harm should he return to Singapore, and on that basis he satisfied the complementary protection provision in s36(2)(aa) of the Migration Act. However, the delegate found the Applicant was ineligible for grant of a protection visa as the ineligibility provision in s36(2C)(a)(ii) of the Act applied to the Applicant because there were serious reasons to consider he had committed a serious non-political crime before entering Australia.
[3] Hearing Book 1, p. 147-148.
ISSUE TO BE DETERMINED
The issue to be determined is whether the Applicant is ineligible for a protection visa by operation of the ineligibility provisions in s36(2C) of the Migration Act.
CONSIDERATION
Paragraph 500(1)(c)(ii) of the Migration Act provides the Tribunal authority to review this decision. The Tribunal’s jurisdiction is confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the delegate upon s36(2C)(a)(ii) of the Act. The Tribunal does not have jurisdiction to revisit the delegate’s findings on the Applicant’s protection claims. I have proceeded on the basis that materials and documents which are solely relevant to the Applicant’s protection claims are not relevant to this review.[4]
[4] See GWRV v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 350; [2023] FCAFC 39 (Jackson, Abraham and Feutrill JJ) agreeing at [42]-[44], [48]-[49].
To determine whether the ineligibility provision in s36(2C)(a)(ii) of the Act applies to the Applicant, I am required to consider whether there are ‘serious reasons for considering’ that the Applicant committed a serious ‘non-political’ crime ‘before entering Australia’.
Are there ‘serious reasons for considering’?
Although both s 5H(2) and 36(2C) of the Migration Act use the phrase serious reasons for considering that the person has committed a serious non-political crime before entering Australia, a definition of ‘serious reasons for considering’ is not provided in the Migration Act. Numerous judicial authorities have considered the phrase ‘serious reasons for considering’ in the context of Article 1F of the Refugees Convention. In FTZK v Minister for Immigration and Border Protection (FTZK), French CJ and Gageler J at [14] said with respect to the construction of Article 1F(b).[5]
[14] The qualifying term “serious” indicates that the reasons must be sufficient to support a strong inference. There are a variety of mechanisms, administrative and judicial, by which a receiving State may determine whether that threshold is reached. Weinberg J, in a careful consideration of the construction of Art 1F(b) in Arquita v Minister for Immigration and Multicultural Affairs, stated the position accurately when he said:
“It is sufficient … if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as ‘strong’. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as “strong” without meeting either of these requirements.
…
Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.
[5] FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014 HCA 26] (FTZK) French CJ and Gageler J at [8]-[9], [14].
In ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (ZVYZ), Colvin J considered the phrase ‘significant reasons for considering’ in the context of s36(2C) of the Migration Act. After acknowledging the present form of the legislation is different, His Honour observed the law was intended to give effect to Australia’s treaty obligations and concluded the phrase ‘significant reasons for considering’ should be interpreted in the manner described in FTZK.[6]
[6] ZVYZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] (ZVYZ) FCA 28 [24]-[26].
In a statement dated 16 April 2024, the Applicant details an offence he committed in Singapore in January 2006 (the 2006 crime):
3. In early January 2006, my ex-wife, [name], was molested by a man in Singapore. I cannot recall the man’s name. I was very upset about what he did to her. My wife came to me and informed me of what happened to her. I wanted to protect and defend my ex-wife. [Ex-wife] led me to where the man was, and I accompanied her to confront him. I was angry and emotional at the time because of what had happened to my wife. I was not thinking clearly. I stabbed this man in the leg.
4. This man was involved in a criminal gang and drug dealing. I realised this when I went with my wife to confront him - I recognised the location as gang territory. The area was Daimaru in Singapore.
5. I fled to Malaysia because I realised that I had a made a mistake in hurting this man, who had connections with a criminal gang. I feared that I would be facing harsh punishment, including lashes, as a result. I was scared. I also feared retribution from this man and his gang.
6. With this application I have provided a copy of my ‘Certificate of Clearance’ from the Singaporean Police Force, which confirms I am a ‘Person of Interest’. I understand the certificate states that I am wanted for an investigation of ‘Robbery with Hurt under Section 394 of Penal Code 224’ which happened on 15 January 2006. I do not know why it states that I committed robbery. I can only guess that the man whom I stabbed reported that I robbed him as well.
7. I have not been violent since this time, and I understand that violence is not the answer to conflicts. I understand that it is wrong to use violence.
In evidence is a Singapore Police Force (SPF) Certificate of Clearance dated 13 January 2023 which states that the Applicant ‘is a Person of Interest for an investigation of Robbery with Hurt under Section 394 of Penal Code 224, which happened on 15 January 2006’. The Certificate of Clearance also states that the Applicant ‘is listed as a “Wanted” person by Singapore Police Force’.[7]
[7] Hearing Book 1, p. 77.
The Applicant was interviewed regarding his protection visa application on 18 April 2024.[8] In the reviewable decision, the delegate notes that the Applicant was uncertain why he had been charged with having committed robbery for the 2006 crime.[9]
[8] Hearing Book 1, p. 124.
[9] Hearing Book 1, p. 41.
In submissions dated 2 May 2024, the Applicant’s representative had confirmed:
1.[SDQX] is a Singaporean national.
2.[SDQX] is wanted by the Singaporean authorities in relation to an offence of stabbing a man, which he committed in approximately January 2006.
3.[SDQX] has a Certificate of Clearance confirming he is a ‘wanted’ person by the Singaporean police force.
4.[SDQX] fears he will be sentenced to violent lashes for his outstanding charge and fears significant harm and inhuman treatment from the Singaporean authorities, including within Singaporean prisons…[10]
[10] Hearing Book 1, p. 147-160.
At the hearing, the Applicant confirmed he had stabbed a man in the leg in 2006 because he was upset at what he had done to his ex-wife.
In the submission of 2 May 2024, the Applicant provided details about drug transportation offences he committed in Malaysia whereby he transported drugs to China on three occasions (the drug offending).[11] Consistent with this submission, the Applicant gave evidence at the Hearing that on three occasions he had carried four to eight kilograms of an unknown drug strapped to his body. He said his account is supported by passport stamps which record his travel to China in 2006.[12]
[11] Hearing Book 1, p. 158.
[12] Hearing Book 1, p. 114-119.
Having regard to the Applicant’s own claims for protection, the submissions made on his behalf, his statements as outlined above, and the Certificate of Clearance confirming the Applicant is wanted by Singapore Police in relation to the 2006 crime, I conclude there are serious reasons to consider that the Applicant committed the 2006 crime.
Was the crime ‘serious’?
Subsection 5(1) of the Migration Act provides definitions for ‘serious Australian offence’ and ‘serious foreign offence’ as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
serious foreign offence means an offence against a law in force in a foreign country, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; and
(b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
Subsection 5(1) of the Migration Act does not define what constitutes ‘a serious non-political crime’ for the purposes of s 36(2C)(a)(ii) of the Act. However, section 5M of the Migration Act defines a ‘particularly serious crime’ under s 36(1C)(b) of the Act as ‘a serious Australian offence’ or ‘a serious foreign offence’. The Complementary Protection Guidelines state that these definitions may assist decision makers in determining whether a non-political crime is ‘serious’ for the purposes of s36(2C)(a)(ii).[13]
[13] Bundle of Authorities, p. 12.
As previously outlined, the Certificate of Clearance states that the Applicant is a ‘Person of Interest for an investigation of Robbery with Hurt under Section 394 of Penal Code 224’. Excerpts of Singapore Statutes are in evidence and s 394 of the Singapore Penal Code provides that for the offence of voluntarily causing hurt in committing a robbery:[14]
394. If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person, jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for a term of not less than 5 years and not more than 20 years and shall also be punished with caning with not less than 12 stokes.6
[14] Hearing Book 1, p. 179, 188.
While the Applicant confirmed the 2006 crime, he questioned why the Singapore arrest warrant states he is being investigated for ‘robbery’, and speculated that the victim may have told police he had attempted to rob him. The Applicant has provided considerable detail regarding the offence and the reasons for the offending and based on his evidence it is apparent he does not accept that robbery was a factor in the 2006 crime.
If the element of robbery is disregarded, the 2006 crime without robbery may still satisfy the offence of voluntarily causing hurt by dangerous weapons or means provided for in s 324 of the Singapore Penal Code:
324. Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for … stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, … shall be punished with imprisonment for a term which may extend to 5 years, or with fine, or with caning, or with any two of such punishments.
The Applicant’s evidence is that he stabbed a man and had used a knife intending to injure him. The SPF Certificate of Clearance states that the Applicant is a person of interest for an offence of causing hurt by dangerous weapons or means. I am satisfied that the 2006 crime is a crime involving violence against a person.
In the reviewable decision, the delegate assessed the seriousness of the 2006 crime and concluded it amounted to a serious crime under Australian law:
While the applicant has not been brought to trial for the violent crime he stated he had committed in January 2006, the warrant for his arrest is related to the offence of ‘Robbery with Hurt’. If the foreign offence was applied comparative to the maximum sentence legislated for the alleged offence under Crimes Act 1900 (ACT), the applicant would likely have been punishable under s98 ‘Robbery with arms and wounding’. Upon conviction, the sentence makes an offender liable to a maximum term of 25 years imprisonment. This amounts to a ‘serious’ crime serious’ [sic] under Australian law.
In their Statement of Facts, Issues and Contentions (SFIC) , the Respondent asserted that the 2006 crime would have been punishable under s98 of the Crimes Act 1900 (ACT).[15] In a post hearing submission lodged on 26 August 2025, the Respondent clarified that the reference to s98 of the Crimes Act 1900 (ACT) was in error and submitted the relevant excerpts of the Criminal Code 2002 (ACT):
[15] Respondent’s Statement of Facts, Issues and Contentions, p. 7 [24]
309 Robbery
A person commits an offence (robbery) if—
(a) the person commits theft; and
(b) when committing the theft, or immediately before or immediately after committing the theft, the person—
(i) uses force on someone else; or
(ii) threatens to use force then and there on someone else;
with intent to commit theft or to escape from the scene.
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.
Note Theft means an offence against s 308 or s 321.
310 Aggravated robbery
A person commits an offence (aggravated robbery) if the person—
(a) commits robbery in company with 1 or more people; or
(b) commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
Maximum penalty: 2 500 penalty units, imprisonment for 25 years or both.
Note Robbery means an offence against s 309.
In an update to its SFIC, the Respondent submitted:
[24] If the alleged Singaporean offence of ‘Robbery with Hurt’ was applied comparative to the maximum sentence legislated for the alleged offence under the Criminal Code 2002 (ACT), the applicant would likely have been punishable under s 310: Aggravated robbery. This offence would have been punishable by a maximum penalty of 25 years imprisonment. This offence involves violence against a person (the elements of Aggravated robbery under s 310 of the Criminal Code 2002 (ACT) includes the commission of Robbery under s 309 of the Criminal Code 2002 (ACT) which involves the use of force or threaten to use force) and its maximum penalty of 25 years significantly exceeds 3 years, amounting to a “serious foreign crime offence” as defined under s 5 of the Act.[16]
[Emphasis in original]
[16] Respondent’s submission, 25 August 2025.
If the element of robbery is disregarded due to inconsistency with the Applicant’s admission, the Applicant’s offence would likely have been punishable under s 24 of the Crimes Act 1900 (ACT), which provides for a term of imprisonment for 5 years:
24 Assault occasioning actual bodily harm
(1) A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.[17]
[17] Hearing Book 1, p. 175.
The Complementary Protection Guidelines[18] provide that when assessing whether offending behaviour amounts to a ‘serious non-political crime’, consideration should be given to all relevant circumstances including the circumstances of the offending, the age of the Applicant at the time of offending, and role the Applicant played in the offending. In respect of the nature and circumstances of the 2006 crime, the Applicant was 27 years old at the time of the offence and has admitted his role as primary offender. The Respondent notes that the Applicant said that the intention was to stab the victim after he was informed of the man’s molestation of his wife. He had already served time in prison and was aware of the potential consequences for committing crimes from his prior experience of the justice system.
[18] Bundle of Authorities p. 12.
The Applicant has explained that he was motivated to commit the crime by the need to protect his ex-wife, and that he was emotional and not thinking clearly. I acknowledge the Applicant claims to have had a ‘turbulent youth’, limited education and was subject to violence from his father.[19]
[19] Hearing Book 1, p. 155-156.
The nature of the 2006 crime and the Applicant’s explanation are inconsistent with it being a political crime. At the time of the offence, the Applicant was a relatively young man who had experience in the criminal justice system. He was the sole perpetrator of the 2006 crime. Overall, I do not find that the Applicant’s age, the circumstances of the offending or the role he played in the crime to be appreciable mitigation factors.
The 2006 crime involved violence against a person, and the maximum penalties of imprisonment on conviction range from 5 to 25 years. Having regard to s 5(1) of the Migration Act, I am satisfied that the offence is punishable by a term of imprisonment exceeding 3 years and an offence against a law in force in Australia. That the 2006 crime is an offence against the law in Singapore is confirmed by the SPF Certificate of Clearance. It follows that the 2006 crime is a ‘serious Australian offence’ and a ‘serious foreign offence’ as defined under s 5(1) of the Migration Act and I am satisfied that the 2006 crime is a ‘serious crime’ under s 36(2C)(a)(ii) of the Migration Act.
Was the crime ‘non-political’?
The expression ‘non-political crime’ is defined under s 5(1) of the Migration Act:
non‑political crime:
(a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non‑political in nature; and
(b) includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
Section 5 of the Extradition Act 1998 (Cth) (Extradition Act) defines ‘political offence’:
political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:
(a) an offence that involves an act of violence against a person’s life or liberty; or
(b) an offence prescribed by regulations for the purposes of this paragraph to be an extraditable offence in relation to the country or all countries; or
(c) an offence prescribed by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.
To meet the definition of a political crime, there must be a sufficiently close connection between the criminal act and its alleged political purpose and object.[20] In this instance, the Applicant has admitted his motive for committing the 2006 crime was to defend his ex-wife and because he was angry and emotional.
[20] Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; 209 CLR 533; 186 ALR 393; 76 ALJR 514 (7 March 2002) at [21] per Gleeson CJ.
I also note the statutory exclusion under s 5(a) of the Extradition Act provides that a political offence does not include ‘an offence that involves an act of violence against a person’s life or liberty’. The Refugee Law Guidelines provide examples of offences that may amount to an act of violence against a person’s life or liberty and include ‘assault’. I accept the Respondent’s submission that the 2006 crime falls under this exclusion.
The 2006 crime was not of political character and involved an act of violence against a person. For these reasons, I find the 2006 crime constitutes a non-political crime.
Was the crime committed before the Applicant entered Australia?
The Applicant entered Australia on 11 December 2006 on a visitor visa.[21] In relation to the 2006 crime, the Singapore Police Clearance certificate states the Applicant is wanted for an offence that happened on 15 January 2006. The Applicant has stated the 2006 crime occurred in ‘early January 2006’ or ‘approximately January 2006’. I find that the Applicant committed the 2006 crime before entering Australia.
[21] Tribunal Document 3, p. 14.
CONCLUSION
For the reasons I have outlined, I find that there are serious reasons for considering that the Applicant committed a serious non-political crime before entering Australia. I am not satisfied that there is anything in the circumstances in which the 2006 crime was committed or circumstances specific to the Applicant at the time he committed the crime or subsequent which should cause the crime to be treated as anything other than a serious non-political crime. Accordingly, I find that s36(2C)(a)(ii) of the Migration Act applies and the Applicant is taken not to satisfy the criterion for a protection visa in s 36(2)(aa) of the Migration Act.
DECISION
For the reasons outlined above, the reviewable decision is affirmed.
Date(s) of hearing: 24 July 2025 Applicant: Self-represented Solicitors for the Respondent: Triston Qian; Mills Oakley
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