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1607676 (Refugee)

1607676 (Refugee)

Case [2017] AATA 1564 31 July 2017

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1607676 (Refugee) [2017] AATA 1564 (31 July 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division
CASE NUMBER:  1607676
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Dr Colin Huntly
DATE OF DECISION:  31 July 2017
DATE CORRIGENDUM
SIGNED:11 September 2017
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:
Paragraphs:
[5]First sentence: “his witness” should read “her witness”.
[7]Masculine pronoun throughout should read feminine pronoun.
[16]First sentence: “record, he” should read “record, she”.
[29]First sentence: “2018” should read “2015”.
[38]First sentence: “Malay’s” should read “Malays”.
[46]Quotation extract: Masculine pronoun throughout should read feminine pronoun.
[47]Penultimate sentence: “English t the hearing” should read “English at the hearing”
[51]“Applicant” should read “applicant”.
[53]Paragraph should be deleted.
[65]“[City 1] in February 2016 given” should read “[City 1] in February 2016; and, given”.
[70]First sentence: “at first that she” should read “at first stated that she”. Final sentence: “applicant volunteer” should read “applicant to volunteer”.
[72]First sentence: “2017 stated” should read “2017 referred to above, stated”.
[73]First sentence: “not apply to her” should read “not applied to her”.
[74]Second sentence: “applicants own” should read “applicant’s own”.
[77]First sentence: “in his application” should read “in her application”.
[97]Second last line: “gives rise to separate” should read “gives rise to a separate”.

Dr Colin Huntly
Member

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1607676
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Dr Colin Huntly
DATE:31 July 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 31 July 2017 at 12:18pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Atheist – Credibility – New information introduced at hearing – Vague and general claims
LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIMA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors, (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MMM v MIMA (1998) 90 FCR 324
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMIA [2003] FCAFC 65
SDAQ v MIMIA (2003) 129 FCR 137
Selvadurai v MIEA & Anor (1994) 34 ALD…

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.

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Details

AGLC: 1607676 (Refugee) [2017] AATA 1564
Case: [2017] AATA 1564
Decision Date: 31 July 2017

CaseChat Overview and Summary

The applicant, an atheist, sought review of the Refugee Tribunal's decision to refuse to grant a protection visa. The applicant claimed to fear persecution in Malaysia due to their religious beliefs, or lack thereof. The Federal Circuit Court was tasked with determining whether the Tribunal's decision was affected by an error of law.

The primary legal issue before the Court was whether the Tribunal had adequately considered the applicant's claims of persecution based on their atheism. This involved assessing whether the Tribunal had properly evaluated the credibility of the applicant's evidence, particularly in light of new information introduced at the hearing, and whether the applicant's claims were sufficiently particularised to warrant further consideration.

The Court found that the Tribunal had failed to properly assess the applicant's claims regarding their atheism and the potential for persecution in Malaysia. The Tribunal's assessment of the applicant's credibility was found to be flawed, particularly concerning the weight given to vague and general claims. The Court emphasised that even claims of persecution based on a lack of religious belief require careful and specific consideration.

The Court set aside the Tribunal's decision and remitted the matter to the Tribunal for redetermination in accordance with the Court's reasons.

Orders