1608382 (Refugee) - [2017] AATA 3090

1608382 (Refugee) [2017] AATA 3090 (9 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608382
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Dr Colin Huntly
DATE AND TIME OF
ORAL DECISION AND REASONS:          9 August 2017 at 1:38 pm (WA time)
DATE OF WRITTEN RECORD:                23 August 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review.
Statement made on 23 August 2017 at 11:52am

CATCHWORDS
Refugee – Protection Visa – Malaysia – Particular social group – Persons in Malaysia indebted to Ah Longs (Loan Sharks) – Returnees – State protection available – Witness credibility – Significant delay in seeking protection
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5LA, 36
CASES
A v MIMA (1999) 53 ALD 545
Horvath v Secretary of State for the Home Department (SSHD) [2001] 1 AC 489
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SAAD v MIMIA [2003] FCAFC 65
SDAQ v MIMA (2003) 129 FCR 137
Selliah v MIMIA [1999] FCA 615
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.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] May 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 9 August 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
APPLICANT IDENTITY
According to the applicant’s movement record he arrived in Australia [in] May 2008, travelling on his most recent Malaysian passport travelling into Australia on a [temporary] visa. This visa expired [in] August 2008. The applicant thereafter remained unlawfully in Australia until he applied for a protection visa [in] September 2015.
In addition to departmental files relating to the applicant the tribunal has had regard to the applicant’s most recent passport which was issued in [a town in] Malaysia [in] 2008. There is nothing before the tribunal to suggest that the applicant is not the person identified in the passport.
On the basis of the foregoing evidence the tribunal finds that the [applicant] is a man, born [birth date], and is a national of Malaysia. The tribunal, therefore, finds that receiving country for the applicant is Malaysia for the purposes of section 36(2)(aa) of the Act.
The tribunal has no information to suggest that the applicant has a right to enter and reside in another country. The tribunal, therefore, finds that the applicant does not have a current right to enter or reside in another country other than Malaysia. Accordingly, section 36(3) of the Act does not apply to him.
STATEMENT…

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 1608382 (Refugee)

Details

AGLC: 1608382 (Refugee) [2017] AATA 3090
Case: [2017] AATA 3090
Decision Date: 9 August 2017

CaseChat Overview and Summary

This decision concerns an application for a protection visa made by an applicant who claimed to be at risk in Malaysia due to debts owed to loan sharks ("Ah Longs") and potentially as a "returnee." The applicant was represented by a migration agent and assisted by an interpreter during hearings before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant would face a real risk of significant harm in Malaysia, either currently or in the reasonably foreseeable future, due to his membership in a particular social group, specifically persons indebted to "Ah Longs." The Tribunal also considered whether the applicant might belong to another relevant particular social group, namely "returnees."

The Tribunal considered the available country information regarding Malaysia and the applicant's specific claims, ultimately agreeing with and adopting the delegate's assessment of this information. The Tribunal found that the applicant did not have a current right to enter or reside in any country other than Malaysia, meaning section 36(3) of the Act did not apply. The Tribunal concluded that the delegate's decision to refuse the protection visa should be affirmed.

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

The tribunal has no information to suggest that the applicant has a right to enter and reside in another country. The tribunal, therefore, finds that the applicant does not have a current right to enter or reside in another country other than Malaysia. Accordingly, section 36(3) of the Act does not apply to him.STATEMENT OF DECISION AND REASONS The applicant appeared before the tribunal on 25 July 2017 and again on 9 August 2017, to give evidence, present arguments and answer questions. The applicant was represented in this application by a registered migration agent and the agent attended both hearings with the applicant. At the second hearing the applicant’s agent made oral submissions. The tribunal has referred to the delegate’s record of decision which was provided to the Tribunal by the applicant. The tribunal has taken into account the oral submissions made by the applicant’s agent. The applicant was assisted at both hearings by an interpreter fluent in both Mandarin and English. The issue raised in this case can be expressed in terms of refugee protection as being whether the applicant engages Australia’s protection obligations for the essential and significant reason of the applicant’s membership of a particular social group; namely, persons in Malaysia indebted to Ah Longs. Although not specifically addressed in the application for protection the tribunal has considered a further particular social group that may be of relevance to the applicant; namely, the applicant’s potential membership of a particular social group; returnees. As initially expressed, the primary issue in this matter for determination by the tribunal is whether or not there is a real risk that the applicant will suffer significant harm now or in the reasonably foreseeable future if he were removed from Australia to Malaysia for reasons relating to the claims raised in his application for protection. For reasons that will follow, the tribunal has concluded that the decision of the delegate for the Minister for Immigration should be affirmed.Relevant Law and Country Information The law relevant to this application for review is that which applies to applications made at the date of the applicant’s original application, as understood to apply the date of this decision. The applicant has discussed the criteria for a protection visa with his agent, and this was confirmed with the applicant at the hearing. The tribunal has had regard to the country information discussed in the delegate’s record of decision. The tribunal has discussed this country information with the applicant at the hearing and also with the applicant’s agent. The tribunal acknowledges the submissions made by the applicant’s agent, particularly to the extent that the agent has raised concerns with the tribunal about the completeness and accuracy and consistency of available country information relating to Malaysia. However, having considered the available country information and the applicant’s particular claims, the tribunal expressly agrees with and accepts the delegate’s discussion of country information which is contained in the delegate’s record of decision and adopts that discussion as the tribunal’s own to the extent that it is otherwise consistent with country information referred to in this decision.

Ratio Decidendi

Legal Principle Established

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