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1705697 (Refugee)

1705697 (Refugee)

Case [2021] AATA 4409 13 September 2021

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1705697 (Refugee) [2021] AATA 4409 (13 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1705697
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Simone Burford
DATE:13 September 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2021 at 2:59pm

CATCHWORDS
REFUGEE – protection visa – Malaysia –membership of a particular social group – victims of a loan shark – a financially vulnerable person – economic conditions in Malaysia – fear of harm from criminal gangs –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AA, 5J, 36, 65, 423A, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

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 23 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

Background

2. The applicant is a [age]-year-old Malaysian citizen. He is from Kuala Lumpur, Malaysia. He is Muslim and identified himself as ethnically Indonesian. He is married and has one child. He was previously married and was divorced in 2018. Prior to coming to Australia, he was living with his family in Kuala Lumpur.

3. He has a wife whom he met in Australia and married in September 2019. They have…

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 1705697 (Refugee)

Details

AGLC: 1705697 (Refugee) [2021] AATA 4409
Case: [2021] AATA 4409
Decision Date: 13 September 2021

CaseChat Overview and Summary

The applicant, a citizen of Malaysia, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear harm from criminal gangs, specifically loan sharks, due to their financial vulnerability and past involvement with such groups. The primary dispute concerned whether the applicant's fear of harm from loan sharks constituted a well-founded fear of persecution based on membership of a particular social group, as defined by the *Migration Act 1958* (Cth).

The Federal Circuit Court was required to determine whether the applicant was a member of a particular social group for the purposes of the *Migration Act*, and if so, whether they held a well-founded fear of persecution for that reason. This involved assessing the applicant's credibility, the objective circumstances in Malaysia regarding loan shark activity and the state's capacity to protect victims, and whether the applicant's claimed vulnerability placed them within a recognisable social group.

The Court considered the definition of a "particular social group" as established in case law, focusing on whether the group was defined by a common characteristic that the members could not change or should not be required to change. The Court found that while financial vulnerability and past dealings with loan sharks might describe a situation, it did not sufficiently define a cohesive social group with a shared characteristic that distinguished them from the general population in a way recognised by the Convention. Furthermore, the Court found significant credibility issues with the applicant's account, which undermined their claims of a well-founded fear of harm. The Court concluded that the applicant had not established membership of a particular social group or a well-founded fear of persecution.

The decision under review was affirmed.

Orders