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1705878 (Refugee)

1705878 (Refugee)

Case [2017] AATA 2573 9 November 2017

Judicial Review

Procedural Fairness

Statutory Construction

Immigration

Administrative Law

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1705878 (Refugee) [2017] AATA 2573 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1705878
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Susan Trotter
DATE:9 November 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 November 2017 at 11:20am

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Borrower of money from moneylenders – Fear of being harmed by illegal moneylenders

LEGISLATION

Migration Act 1958, ss 5AAA, 36, 65, 499

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BZADA v MIC and RRT [2013] FCA 1062
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
MIAC v MZYYL [2012] FCAFC 147
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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 [in] March 2017 to refuse to grant the applicant [a] protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] who claims to be a citizen of Malaysia applied for the visa [in] November 2016.
The delegate refused to grant the visa on the basis that they were not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations because he is not a refugee, as defined in the legislation. Further, the delegate was not satisfied that [the applicant] was a person in respect of whom Australia has other protection obligations as provided for in the legislation.
[The applicant] lodged an application for review of the delegate’s decision in relation to the Subclass 866 visa with the Tribunal on 24 March 2017.
[The applicant] appeared before the Tribunal by video conference on 4 September 2017 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Malay and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to…

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 1705878 (Refugee)

Details

AGLC: 1705878 (Refugee) [2017] AATA 2573
Case: [2017] AATA 2573
Decision Date: 9 November 2017

CaseChat Overview and Summary

The applicant, a citizen of Malaysia, sought review of the Refugee Tribunal's decision to refuse to grant a protection visa. The applicant claimed to fear harm from illegal moneylenders in Malaysia, alleging that they were part of a social group defined by their indebtedness and the associated risks of engaging with such lenders. The matter came before Susan Trotter, acting as a delegate of the Minister for Immigration and Border Protection, for a review of the Tribunal's decision.

The central legal issue before the delegate was whether the applicant's fear of harm from illegal moneylenders constituted a well-founded fear of persecution for a reason falling within the definition of a refugee, specifically whether the group of "borrowers of money from moneylenders" constituted a social group for the purposes of the *Migration Act 1958* (Cth). The delegate was required to assess if the applicant's claimed fear was objectively reasonable and if the alleged social group met the criteria for recognition under international refugee law as interpreted in Australian jurisprudence.

In her reasoning, the delegate considered the established criteria for identifying a social group, which generally requires a common and immutable characteristic that binds the members together, and that the group is distinct from the general population. The delegate found that while the applicant's fear of harm from moneylenders was genuine, the group of "borrowers of money from moneylenders" was too broad and lacked the necessary nexus of shared characteristics beyond the transactional relationship with moneylenders. The delegate concluded that the group did not possess the defining characteristics of a social group as contemplated by refugee law, and therefore, the applicant's fear, while real, did not engage the protection provisions of the *Migration Act*.

The delegate affirmed the Refugee Tribunal's decision, finding that the applicant did not meet the criteria for a protection visa.

Orders