1608573 (Refugee)

Case [2017] AATA 2675

1608573 (Refugee) [2017] AATA 2675 (7 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608573

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE:7 November 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 November 2017 at 1:06pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Political opinion – Environmental protestor – Land clearing –Fear of detention – Witness credibility – Vague and inconsistent evidence – Delay in applying for protection

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Emiantor v MIMA (1998) 98 ALD 635

SZQNO v MIAC [2012] FCA 326

Iyer v MIMA [2000] FCA 52

Iyer v MIMA [2000] FCA 1788

SDAQ v MIMIA (2003) 129 FCR 137

Chan Yee Kin v MIEA (1989) 169 CLR 379

Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167

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

  1. 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 s.65 of the Migration Act 1958 (the Act).

  2. The applicant appeared before the Tribunal on 27 July 2017, and again on 6 September 2017, to give evidence and present arguments.  The Tribunal was assisted in its inquiries by having been provided with a copy of the delegate’s decision record by the applicant at the point of application for review.

    APPLICANT IDENTITY

  3. The applicant, who claims to be a national of Malaysia, applied for the visa [in] November 2015, and the delegate refused to grant that visa [in] May 2016. 

  4. The applicant arrived in Australia [in] April 2014 as the holder of a [temporary] visa.  The Tribunal has had regard to the Departmental files and the information on which the decision of the delegate, relating to identity, was based.  The Tribunal has also had the advantage of interviewing the applicant in person in addition to reviewing the…

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AGLC
1608573 (Refugee) [2017] AATA 2675
Case
[2017] AATA 2675
Decision Date

CaseChat Overview and Summary

This decision concerns an applicant seeking a protection visa, whose primary claim for protection was based on a well-founded fear of persecution for the essential and significant reason of his political views. The applicant alleged these views stemmed from his protests against land clearing by a business enterprise closely linked to the ruling party in Malaysia, and that he would face persecution if returned to Malaysia. The Tribunal considered country information from DIBP and DFAT, as well as information discussed with the applicant at the hearing.

The central legal issue before the Tribunal was whether the applicant held a genuinely subjective fear of harm, and if so, whether that fear was well-founded. The Tribunal was required to assess the credibility of the applicant's claims, noting that a lack of credibility could lead to a conclusion that the applicant did not possess a subjective fear. The Tribunal also had regard to the principle that a person must have a real chance of being persecuted not just in a particular part of a receiving country.

The Tribunal's reasoning focused on the applicant's credibility, referencing judicial authority that if an applicant's claims are not found to be credible, the Tribunal is not required to proceed to assess other aspects of the claims. The Tribunal noted that if it disbelieved the applicant's evidence, it would conclude that he did not have a subjective fear. The Tribunal also referred to cases where the rejection of an applicant's claim of subjective fear meant it was unnecessary to determine whether the non-existent fear was well-founded, and that the question of objective fear does not arise if no subjective fear is found.

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

Country Information specifically referred to by the Tribunal in this decision is identified below. The Tribunal has also had regard to the most recent DIBP Country Information contained in its COISS publication Malaysia: Common Claims, 1 September 2016 and DFAT Country Information Report – Malaysia, 19 July 2016. In addition, the Tribunal has discussed the delegate’s summary of country information contained in the record of decision with the applicant at the hearing. STATEMENT OF DECISION AND REASONS The Tribunal notes that the applicant’s primary claim for protection is based on holding a well-founded fear of persecution for the essential and significant reason of his political views, specifically relating to his protests against land clearing by a business enterprise with close links to the ruling party in Malaysia, and that such persecution would apply to him if he was to return to Malaysia now, or in the reasonably foreseeable future. As discussed below, in Appendix A “Applicant credibility”, the Tribunal notes that, if it makes findings that an applicant’s claims are not credible, that may lead to the conclusion that the Tribunal does not believe the applicant had a genuinely subjective fear of harm.[1] Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[2] The Tribunal also notes that it will not be sufficient that a person has a real chance of being persecuted only in a particular part of a receiving country. [1]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.[2]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim. On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.

Ratio Decidendi

Legal Principle Established

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