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1706782 (Refugee)

1706782 (Refugee)

Case [2017] AATA 2922 10 November 2017

Judicial Review

Procedural Fairness

Statutory Construction

Immigration

Administrative Law

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1706782 (Refugee) [2017] AATA 2922 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1706782
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Susan Trotter
DATE:10 November 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 November 2017 at 2:49pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Fear of being harmed by illegal moneylenders – loan shark – Debt – State Protection available

LEGISLATION
Migration Act 1958, ss 5AAA, 5I-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225
BZADA v MIC and RRT [2013] FCA 1062
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Chen Shi Hai v MIMA (2000) 201 CLR 293
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
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
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
Weheliye v MIMA [2001] FCA 1222
Yang v Carroll (1994) 852 F Supp 460

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 1 April 2017.
[The applicant] appeared before the Tribunal by video conference on 31 August 2017 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Malay and English languages.
For…

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 1706782 (Refugee)

Details

AGLC: 1706782 (Refugee) [2017] AATA 2922
Case: [2017] AATA 2922
Decision Date: 10 November 2017

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 illegal moneylenders in Malaysia due to an outstanding debt. The Administrative Appeals Tribunal had affirmed the Minister's decision, finding that the applicant would not be at risk of persecution or serious harm if returned to Malaysia, as adequate protection was available from the Malaysian authorities.

The primary legal issue before the court was whether the Tribunal erred in finding that the Malaysian authorities would provide effective protection to the applicant against the alleged threat from illegal moneylenders. This involved considering whether the Tribunal had adequately assessed the evidence regarding the prevalence and effectiveness of law enforcement responses to loan sharking in Malaysia, and whether the applicant's specific circumstances were such that they would be denied protection.

The court analysed the Tribunal's findings in light of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly concerning the assessment of risk and the availability of state protection. The court considered whether the Tribunal had properly applied the principles established in cases concerning the assessment of protection claims, including the need to consider the real chance of harm and the capacity of the state to prevent or mitigate that harm. The court found that the Tribunal had failed to adequately consider certain evidence relating to the applicant's specific circumstances and the limitations of state protection in addressing the threat posed by illegal moneylenders.

The court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.

Orders