1704870 (Refugee)

Case [2021] AATA 3439

1704870 (Refugee) [2021] AATA 3439 (6 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704870

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE:6 July 2021

PLACE OF DECISION:  Perth

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

Statement made on 06 July 2021 at 10:17am

CATCHWORDS
REFUGEE – protection visa – Malaysia – economic and political issues – high cost of living – low income households in Malaysia – spouse and child’s separate protection visa applications – COVID-19 pandemic – personal indebtedness – child’s ‘illegitimate status’ – interfamilial animosity – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 104
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 & Or (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 22 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

  2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 19 July 2016.

  3. The applicant was not represented during the review application process.  Hearings were held with the assistance of an interpreter fluent in both the English and Malay languages.

    ISSUES TO BE DETERMINED AND DECISION SUMMARY

  4. The delegate refused to grant the visa on the basis that generalised claims relating to “economic and political issues’ or facing a ‘high cost of living’ do 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. 

  5. 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 he had not identified any particularised risk of harm directed at himself in that country now or in the reasonably foreseeable future.  Neither did the applicant identify how the harm identified in his claims might amount to significant harm consistent with s.36(2A) of the Act.

  6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    RELEVANT LAW

  7. The law relevant to this application for review is discussed at ‘Attachment -…

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AGLC
1704870 (Refugee) [2021] AATA 3439
Case
[2021] AATA 3439
Decision Date

CaseChat Overview and Summary

This matter concerned a review of a decision to refuse the grant of a protection visa to an applicant. The applicant, who was unrepresented, sought review of the delegate's decision, which had refused the visa on the grounds that generalised claims relating to economic and political issues, or a high cost of living, did not constitute persecution for the purposes of the refugee criterion under section 36(2)(a) of the Act. Furthermore, the delegate found the applicant was not eligible for a protection visa under the complementary protection criteria in section 36(2)(aa) of the Act, as no particularised risk of harm directed at the applicant had been identified, nor had it been demonstrated how any claimed harm would amount to significant harm as required by section 36(2A) of the Act.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa, specifically whether the claims made regarding economic and political issues in Malaysia constituted persecution under the refugee provisions, and whether the applicant faced a particularised risk of significant harm under the complementary protection provisions. The Tribunal was required to determine if the applicant had provided sufficient evidence to establish these claims, given the onus rests on the applicant to specify all particulars of their claim and provide sufficient evidence.

The Tribunal reasoned that generalised claims about economic and political issues or a high cost of living do not, in themselves, satisfy the criteria for persecution under the Act. The Tribunal noted that it is the applicant's responsibility to present their case fully and provide evidence to establish their claims, and that the Tribunal is not obliged to specify or assist in specifying the particulars of a claim. The Tribunal also considered the applicant's failure to identify a particularised risk of harm or demonstrate how any claimed harm would amount to significant harm. In light of these considerations, and the applicant's failure to establish the necessary criteria, the Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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

The applicant was not represented during the review application process. Hearings were held with the assistance of an interpreter fluent in both the English and Malay languages.ISSUES TO BE DETERMINED AND DECISION SUMMARY The delegate refused to grant the visa on the basis that generalised claims relating to “economic and political issues’ or facing a ‘high cost of living’ do 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 he had not identified any particularised risk of harm directed at himself in that country now or in the reasonably foreseeable future. Neither did the applicant identify how the harm identified in his claims might amount to significant harm consistent with s.36(2A) 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 the Act’.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].