1601793 (Refugee) - [2016] AATA 4894

1601793 (Refugee) [2016] AATA 4894 (25 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1601793
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Robert Titterton
DATE:25 June 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 25 June 2016 at 4:25pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Complementary protection grounds – Federal Circuit Court remittal – Ethnicity – Chinese – Discrimination from Muslims – Not significant harm – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 48A, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
SZTQP v MIBP [2015] FCCA 423
WZASD v MIBP [2013] FCCA 1940

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Malaysia. Relevantly, he applied for the protection visa on 12 May 2014. He was invited to attend a hearing to be held on 5 December 2014. He did not attend the hearing. The delegate refused to grant the protection visa.
The applicant sought a review of that decision. He was invited to attend a hearing to be held on 10 November 20105. He responded to that invitation, indicating that he would be attending. However, he did not appear on the day of the hearing.
On 11 November 2015, the Tribunal (as presently constituted) published its decision to affirm the delegate’s decision not to grant the applicant a protection visa.
Subsequently, the applicant appealed to the Federal Circuit Court. [In] February 2016, the court allowed the applicant’s appeal and remitted the matter to the Tribunal. The Tribunal as originally constituted was again constituted to hear the applicant’s application for review of the delegate’s decision.
The hearing was conducted on 15 June 2016. The applicant appeared before the Tribunal and gave evidence and presented arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

RELEVANT LAW

7.Section 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. In SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 the Full Court of the Federal Court of Australia determined that s 48A does not prevent a person from making another application for a protection visa on…

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 1601793 (Refugee)

Details

AGLC: 1601793 (Refugee) [2016] AATA 4894
Case: [2016] AATA 4894
Decision Date: 25 June 2016

CaseChat Overview and Summary

The applicant, a citizen of China, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to fear persecution in China due to their ethnicity and religion, alleging discrimination by Muslims. The matter was remitted to the Federal Circuit Court by the Federal Court.

The primary legal issue before the Court was whether the applicant had established that they would suffer significant harm if returned to China, specifically in relation to claims of ethnicity-based discrimination and fear of Muslims. The Court was required to assess whether the applicant met the criteria for a protection visa under Australian refugee law, considering the evidence presented regarding their circumstances in China.

The Court considered the applicant's claims of discrimination and fear of harm. It found that while the applicant belonged to the Chinese ethnic group and identified as a Muslim, the evidence did not establish a real chance of significant harm being suffered upon return to China. The Court concluded that the alleged discrimination and fear of Muslims did not meet the threshold for protection under the *Migration Act 1958* (Cth).

The decision of the Minister to refuse the protection visa was affirmed.

Orders