1704099 (Refugee)

Case [2021] AATA 2006

1704099 (Refugee) [2021] AATA 2006 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704099

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE:28 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 28 April 2021 at 8:36am

CATCHWORDS
REFUGEE – protection visa – Malaysia – indebted to illegal moneylenders – credibility concerns – failure to seek any assistance in Malaysia – multiple voluntary returns to Malaysia – new claims raised late in process – COVID-19 pandemic crisis – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5LA, 36, 65, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

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 and Border Protection on 11 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

    APPLICANT IDENTITY

  2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 11 October 2016, and the delegate notified the applicant that the application had been refused by letter dated 7 March 2017.

  3. The applicant arrived in Australia [in] August 2016 as the holder of [a] Visitor ETA 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. 

  4. Accordingly, on the basis of the foregoing evidence, the Tribunal finds that the applicant is a national of Malaysia.  Having established the applicant’s identity to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicant is Malaysia. 

    ISSUES TO BE DETERMINED AND DECISION SUMMARY

  5. The delegate refused to grant the visa on the basis that being indebted to illegal moneylenders in Malaysia does not place a person within any of the categories of persecution at s.5J(1)(a) of the Act for the purposes of protection in Australia, grounded on the refugee criterion at s.36(2)(a) of the Act. 

  6. The delegate further found that the applicant was not eligible for a protection visa by reference to the complementary protection criteria at s.36(2)(aa) of the Act because effective protection was available in Malaysia to such persons (as per s.36(2B)(b) and s.5LA…

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AGLC
1704099 (Refugee) [2021] AATA 2006
Case
[2021] AATA 2006
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse the grant of a protection visa. The applicant, a national of Malaysia, claimed to be indebted to illegal moneylenders in Malaysia, which formed the basis of their fear of persecution. The Tribunal was required to determine whether this situation met the criteria for a protection visa under the Migration Act 1958 (Cth), specifically whether it constituted persecution for the purposes of the refugee criterion or fell within complementary protection grounds, and whether effective protection was available in Malaysia.

The Tribunal was required to assess the applicant's credibility and the validity of their claims, considering that new claims and evidence were raised late in the process without a reasonable explanation. The Tribunal also had regard to its obligations under the President's Directions concerning the timely completion of cases and the focus on necessary elements for resolution, as well as the well-settled principle that the onus is on the applicant to present their case fully and provide sufficient evidence. The Tribunal considered whether the applicant's subjective fear of persecution was genuinely held and whether there was an objective basis for such a fear, noting that previous decisions have affirmed that voluntary return visits to a country can support a conclusion that an applicant does not hold the necessary fear of persecution.

The Tribunal found that the applicant was a national of Malaysia and that Malaysia was the relevant receiving country. It concluded that being indebted to illegal moneylenders in Malaysia did not, in itself, place the applicant within the categories of persecution for the purposes of the refugee criterion under section 36(2)(a) of the Act. Furthermore, the Tribunal found that the applicant was not eligible for a protection visa by reference to the complementary protection criteria, as effective protection was available in Malaysia. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I have had regard to the President’s COVID-19 Special Measures Practice Direction, Migration and Refugee Division 27 April 2020. I have also had regard to the President’s Direction, Conducting Migration and Refugee Reviews 1 August 2018. In particular: · That Members are to take all reasonable steps to complete cases allocated to them as quickly as possible;[1] and · That generally, in reviewing a decision to refuse the grant of a protection visa, Members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.[2] [1]Consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b) at [2.1].[2]At [8.1]NEW CLAIMS AND EVIDENCE Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim, or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[3] Applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. [3]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Two obligations here are particularly relevant. First, the ongoing requirement under s.104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity. CRITERIA FOR A PROTECTION VISA The criteria for a protection visa are set out in s.36 of the Act and Sch.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) of the Act. 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. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country.[4] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[5][4]Section 5H(1)(a) of the Act.[5]Section 5H(1)(b) of the Act.

Decision

Reasons for decision

Accordingly, on the basis of the foregoing evidence, the Tribunal finds that the applicant is a national of Malaysia. Having established the applicant’s identity to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicant is Malaysia. ISSUES TO BE DETERMINED AND DECISION SUMMARY The delegate refused to grant the visa on the basis that being indebted to illegal moneylenders in Malaysia does not place a person within any of the categories of persecution at s.5J(1)(a) of the Act for the purposes of protection in Australia, grounded on the refugee criterion at s.36(2)(a) of the Act. The delegate further found that the applicant was not eligible for a protection visa by reference to the complementary protection criteria at s.36(2)(aa) of the Act because effective protection was available in Malaysia to such persons (as per s.36(2B)(b) and s.5LA of the Act). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.RELEVANT LAW The law relevant to this application for review is discussed at ‘Attachment - Extract from Migration Act 1958’.PRESIDENT’S DIRECTION I have had regard to the President’s COVID-19 Special Measures Practice Direction, Migration and Refugee Division 27 April 2020. I have also had regard to the President’s Direction, Conducting Migration and Refugee Reviews 1 August 2018. In particular: · That Members are to take all reasonable steps to complete cases allocated to them as quickly as possible;[1] and · That generally, in reviewing a decision to refuse the grant of a protection visa, Members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.[2] [1]Consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b) at [2.1].[2]At [8.1]NEW CLAIMS AND EVIDENCE Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim, or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[3] Applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. [3]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

Ratio Decidendi

Legal Principle Established

If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. The Tribunal notes that in Iyer,[18] 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 did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[19] [18]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].[19]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.Mandatory and other considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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. The Tribunal has also had regard to Migration and Refugee Division guidelines on the assessment of credibility, issued in July 2015, which provides:[20] It is in the nature of an application for protection that determinations are made, at least in part, on an assessment of the applicant’s credibility, and on the credibility of claims themselves. [20]At [8]. Further:[21] In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, and the Tribunal is satisfied that the applicant does not have a reasonable explanation why their claim was not raised, or the evidence was not presented before the primary decision was made, the Tribunal must rule an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements of section 4.3.2A of the act. [21]At [13]. Also:[22]Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal. A member should maintain, and be seen to have, an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant critical issues on which his or her application may depend. An applicant may be favourably fronted with matters that would be adversely on his or her credit, or which bring his or her account into question. However, the Tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated. [22]At [17]–[19].