DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 June 2019 at 2:04pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Stateless – parents’ migration history – nature of the applicant’s parents’ relationship status – bigamous relationship – returnee to Malaysia – denied Malaysian birth registration – difficulties in registering birth – tribunal does not accept applicant is stateless – older sister able to obtain passport – marriage made with knowledge and consent of both parties – mother’s evidence was illogical and inconsistent – credibility of father – decision under review affirmed
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 on 7 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is an infant child of [number] years at the time of this decision. She was born in Australia to Malaysian citizen parents, each of whom are, separately, applicants for protection visas of the same subclass as that which applicant is seeking. It appears from available evidence that the marriage of the applicant’s parents was invalid because the applicant’s father has a living former spouse in Malaysia and he did not obtain a divorce prior to his marriage in Australia. These facts were known to the applicant’s mother at the time of the marriage. The applicant claims to be stateless and claims to fear harm in Malaysia due to her parents’ migration history; their formal relationship status; her birth registration status; and, as a returnee.
The applicant was invited to appear before the Tribunal 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.
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Details
AGLC
1700374 (Refugee) [2019] AATA 5831
Case
[2019] AATA 5831
Decision Date
CaseChat Overview and Summary
This matter concerned an application for review of a delegate's decision to refuse the applicant, an infant child, a protection visa. The applicant, born in Australia to Malaysian citizen parents, claimed to be stateless and to fear harm in Malaysia due to her parents' migration history, their formal relationship status, her birth registration status, and her status as a returnee. The applicant's parents' marriage in Australia was considered invalid as the father had a living former spouse in Malaysia and had not obtained a divorce. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant held a well-founded fear of persecution in Malaysia for any of the claimed reasons.
The Tribunal considered the applicant's claim of statelessness, acknowledging administrative difficulties in registering her birth with Malaysian authorities in Australia due to the bigamous nature of her parents' relationship. However, the Tribunal drew attention to information regarding Malaysian citizenship laws, specifically provisions in the Federal Constitution of Malaysia concerning the citizenship of children born outside the Federation whose fathers are citizens. The Tribunal noted that registration of birth at a consulate is a pathway to citizenship and that for illegitimate children, references to a father are construed as references to the mother.
The Tribunal concluded that the applicant was not stateless, as the provided information suggested she was entitled to register for Malaysian citizenship, either within Australia or upon return to Malaysia, with her mother able to exercise this right on her behalf. The Tribunal also noted that the applicant's parents had indicated an application for birth registration had been made. Consequently, the Tribunal found that the applicant did not meet the criteria for a protection visa. The decision under review was affirmed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).Background The applicant is an infant child of [number] years at the time of this decision. She was born in Australia to Malaysian citizen parents, each of whom are, separately, applicants for protection visas of the same subclass as that which applicant is seeking. It appears from available evidence that the marriage of the applicant’s parents was invalid because the applicant’s father has a living former spouse in Malaysia and he did not obtain a divorce prior to his marriage in Australia. These facts were known to the applicant’s mother at the time of the marriage. The applicant claims to be stateless and claims to fear harm in Malaysia due to her parents’ migration history; their formal relationship status; her birth registration status; and, as a returnee. The applicant was invited to appear before the Tribunal on 26 June 2018, 24 October 2018, 21 March 2019 and again on 16 May 2019, to give evidence and present arguments. The applicant was represented in this application by a registered migration agent. The applicant’s father appeared as the applicant’s advocate at the first two hearings and the applicant’s mother appeared as the applicant’s advocate at the final two hearings. The Tribunal was assisted in this review by the services of an interpreter fluent in both the Mandarin and English languages. The applicant, who claims to be stateless, was born in Australia on [date] to a Malaysian citizen father and a Malaysian citizen mother, both of whom are at the time of this decision, applicants for the same subclass of visa as the applicant. The applicant applied for protection on 31 August 2016. As noted above, on 7 December 2016, a delegate of the Minister for Immigration refused to grant the applicant a Protection visa. The delegate refused to grant the visa on the basis that the applicant did not hold a well-founded fear of persecution in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason of her being born into a bigamous relationship, being unable to register her birth with Malaysian authorities, having a father with a long migration history in Australia, being stateless or for any other reason. The applicant applied to this Tribunal for a review of that decision. CRITERIA FOR A PROTECTION VISA The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Evidence
Evidence Before The Court
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant holds a well-founded fear of persecution in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason of her being born into a bigamous relationship, being unable to register her birth with Malaysian authorities, having a father with a long migration history in Australia, being stateless or for any other reason. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.IDENTITY The applicant claims to have been born in Australia on [date] to a Malaysian citizen father and a Malaysian citizen mother, both of whom are also applicants seeking protection under separate applications. The Tribunal has viewed the applicant’s Australian birth certificate and finds these claims to be established. The applicant, through her representative, claims to be stateless on the basis that her parents’ attempts to register her birth through the Malaysian Consulate in Australia have been unsuccessful. This is stated to be because of the bigamous nature of the applicant’s parents’ relationship. The Tribunal has received copies of the relevant correspondence between the Malaysian Consulate and the applicant’s parents and accepts that there is some administrative difficulty in registering the applicant’s birth with Malaysian authorities in Australia. The Tribunal wrote to the applicant on 15 February 2019 pursuant to s.424A of the Act in the following terms:In addition to the Country Information surveyed in the delegate’s decision record refusing your original application for protection, the Tribunal draws your attention to the following relevant country information:1. In addition to the procedures whereby the birth of a child may be registered with Malaysian authorities in Malaysia, the Website of the Malaysian Consulate General in Australia[16] advises that registration in Australia is also possible.[16]Accessed 30 October 2018.2. The Tribunal also notes that Part III of the Federal Constitution of Malaysia (the Constitution) concerns citizenship. In particular, Article 31 of that Constitution provides that the Second Schedule to the Constitution has application regarding citizenship. Relevantly, Part III of the Second Schedule, at section 17, provides as follows:For the purposes of Part III of this Constitution references to a person‘s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother,…The Tribunal further notes that Part II of the Second Schedule, at section 1, provides as follows:Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and(b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State; and(c) every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di- Pertuan Agong, registered with the Federal Government; and(d) every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph; and(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.The foregoing information is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review. This is because your claims for protection infer that you are potentially rendered stateless as a consequence of the apparently bigamous Australian marriage of your Malaysian citizen biological father to your biological mother (also a Malaysian citizen). The foregoing information suggests that you are, and would continue to be, entitled to register for Malaysian citizenship, either within Australia or on return to Malaysia–and that this right can be exercised by your behalf by your biological mother.The Tribunal notes the submission made on behalf of your biological parents, dated 21 November 2018 suggesting that an application for birth registration has been made on your behalf to the Malaysian Consulate in Australia.The Tribunal requests that a certified copy of your Malaysian Birth Registration document be provided to the Tribunal by 1 March 2019.
Decision
Reasons for decision
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.IDENTITY The applicant claims to have been born in Australia on [date] to a Malaysian citizen father and a Malaysian citizen mother, both of whom are also applicants seeking protection under separate applications. The Tribunal has viewed the applicant’s Australian birth certificate and finds these claims to be established. The applicant, through her representative, claims to be stateless on the basis that her parents’ attempts to register her birth through the Malaysian Consulate in Australia have been unsuccessful. This is stated to be because of the bigamous nature of the applicant’s parents’ relationship. The Tribunal has received copies of the relevant correspondence between the Malaysian Consulate and the applicant’s parents and accepts that there is some administrative difficulty in registering the applicant’s birth with Malaysian authorities in Australia. The Tribunal wrote to the applicant on 15 February 2019 pursuant to s.424A of the Act in the following terms:In addition to the Country Information surveyed in the delegate’s decision record refusing your original application for protection, the Tribunal draws your attention to the following relevant country information:1. In addition to the procedures whereby the birth of a child may be registered with Malaysian authorities in Malaysia, the Website of the Malaysian Consulate General in Australia[16] advises that registration in Australia is also possible.[16]Accessed 30 October 2018.2. The Tribunal also notes that Part III of the Federal Constitution of Malaysia (the Constitution) concerns citizenship. In particular, Article 31 of that Constitution provides that the Second Schedule to the Constitution has application regarding citizenship. Relevantly, Part III of the Second Schedule, at section 17, provides as follows:For the purposes of Part III of this Constitution references to a person‘s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother,…The Tribunal further notes that Part II of the Second Schedule, at section 1, provides as follows:Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and(b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State; and(c) every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di- Pertuan Agong, registered with the Federal Government; and(d) every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph; and(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.The foregoing information is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review. This is because your claims for protection infer that you are potentially rendered stateless as a consequence of the apparently bigamous Australian marriage of your Malaysian citizen biological father to your biological mother (also a Malaysian citizen). The foregoing information suggests that you are, and would continue to be, entitled to register for Malaysian citizenship, either within Australia or on return to Malaysia–and that this right can be exercised by your behalf by your biological mother.The Tribunal notes the submission made on behalf of your biological parents, dated 21 November 2018 suggesting that an application for birth registration has been made on your behalf to the Malaysian Consulate in Australia.The Tribunal requests that a certified copy of your Malaysian Birth Registration document be provided to the Tribunal by 1 March 2019.
Ratio Decidendi
Legal Principle Established
The Tribunal wrote to the applicant on 15 February 2019 pursuant to s.424A of the Act in the following terms:In addition to the Country Information surveyed in the delegate’s decision record refusing your original application for protection, the Tribunal draws your attention to the following relevant country information:1. In addition to the procedures whereby the birth of a child may be registered with Malaysian authorities in Malaysia, the Website of the Malaysian Consulate General in Australia[16] advises that registration in Australia is also possible.[16]Accessed 30 October 2018.2. The Tribunal also notes that Part III of the Federal Constitution of Malaysia (the Constitution) concerns citizenship. In particular, Article 31 of that Constitution provides that the Second Schedule to the Constitution has application regarding citizenship. Relevantly, Part III of the Second Schedule, at section 17, provides as follows:For the purposes of Part III of this Constitution references to a person‘s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother,…The Tribunal further notes that Part II of the Second Schedule, at section 1, provides as follows:Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and(b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State; and(c) every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di- Pertuan Agong, registered with the Federal Government; and(d) every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph; and(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.The foregoing information is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review. This is because your claims for protection infer that you are potentially rendered stateless as a consequence of the apparently bigamous Australian marriage of your Malaysian citizen biological father to your biological mother (also a Malaysian citizen). The foregoing information suggests that you are, and would continue to be, entitled to register for Malaysian citizenship, either within Australia or on return to Malaysia–and that this right can be exercised by your behalf by your biological mother.The Tribunal notes the submission made on behalf of your biological parents, dated 21 November 2018 suggesting that an application for birth registration has been made on your behalf to the Malaysian Consulate in Australia.The Tribunal requests that a certified copy of your Malaysian Birth Registration document be provided to the Tribunal by 1 March 2019.