1707500 (Refugee) - [2020] AATA 6119

1707500 (Refugee) [2020] AATA 6119 (28 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707500
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Dr Colin Huntly
DATE AND TIME OF
ORAL DECISION AND REASONS:         28 October 2020 at 3:15 pm (WA time)
DATE OF WRITTEN RECORD:                16 November 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review.

Statement made on 16 November 2020 at 7:31am
CATCHWORDS
REFUGEE – protection visa – Malaysia – country’s political and economic situation – victim of domestic violence – credibility assessment – new claims and evidence not provided earlier – effective state protection measures – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J, 5LA, 36, 65, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP [2016] FCA 680
Firuzibakhsh v MIMA [2002] FCA 982
Iyer v MIMA [2000] FCA 1788
Iyer v MIMA [2000] FCA 52
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SDAQ v MIMIA (2003) 129 FCR 137
SZDGB v MIAC [2006] FMCA 341
SZQNO v MIAC [2012] FCA 326
SZSSQ v MIBP [2013] FCCA 1762
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.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 28 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons.
STATEMENT OF DECISION AND REASONS
Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant in person at the hearing.
DECISION
The Tribunal affirms the decision under review.
Dr Colin Huntly
Member

Corrected Transcript
ORAL DECISION OF MEMBER HUNTLY [2.29 PM]
BACKGROUND
The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria, or on complementary protection grounds.
Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complementary protection, together with any country information assessment prepared by DFAT, in accordance with Ministerial Direction No. 84.
Credibility
Before looking at my findings I note that on questions of credit I need to give the benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible. Greater weight may be given to one piece of evidence against another and there is no rule that I must hold a positive state of disbelief before making…

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 1707500 (Refugee)

Details

AGLC: 1707500 (Refugee) [2020] AATA 6119
Case: [2020] AATA 6119
Decision Date: 16 November 2020

CaseChat Overview and Summary

The applicant, a citizen of Malaysia, sought review of a decision to refuse her protection visa. The applicant initially claimed to have left Malaysia due to the country's worsening political and economic situation, fearing she would be unable to subsist or provide for her family. During a hearing before the Tribunal, she added a claim that she was a victim of domestic violence by her ex-husband, reporting that the Royal Malaysia Police did not accept her report. The Tribunal was required to assess the applicant's credibility and the merits of her claims, including whether she had a genuine fear of persecution and whether she had provided all relevant claims and evidence to the primary decision-maker.

The Tribunal considered the applicant's claims in light of country information for Malaysia and the legal requirements for a protection visa under section 36 of the Act and Schedule 2 of the Migration Regulations 1994. A key issue was the applicant's failure to present her domestic violence claim and related evidence to the primary decision-maker. The Tribunal noted that under section 423A of the Act, it must draw an adverse inference regarding the credibility of claims or evidence not previously presented, unless the applicant provides a reasonable explanation for the omission. The Tribunal also applied the principle that it is for the applicant to establish their case and present all particulars and evidence, with no obligation on the decision-maker to assist in establishing the claim.

The Tribunal affirmed the delegate's decision to refuse the protection visa. It found that the applicant had not provided a reasonable explanation for failing to raise her domestic violence claim and associated evidence before the primary decision-maker, leading to an adverse inference regarding its credibility. Furthermore, the Tribunal concluded that the applicant had not subjectively held a genuine fear of persecution, which meant there was no need to consider the objective basis of her claims. 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

Full text does not contain this section.

Evidence

Evidence Before The Court

With respect to contradictions, inconsistencies and omissions, [27]–[28] states:Contradictions, inconsistencies and omissions, may arise in the evidence before the Tribunal. The Tribunal will consider all the evidence before it, assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.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 in fact establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, 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. Two obligations here are particularly relevant: 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. Second, s.423A of the Act referred to above requires the Tribunal to draw an adverse inference about the credibility of certain of an applicant’s claims or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not raised or evidence not presented before the primary decision-maker, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. Applicants therefore who do not present all claims and evidence to the primary decision-maker must have a reasonable explanation for not doing so.PROCEDURAL HISTORYBefore the Tribunal The applicant appeared before the Tribunal on two occasions to give evidence and present arguments. The first of these hearings was on 24 September 2020 and the second occasion was 28 October 2020. The applicant was not represented in this application by a registered migration agent. The Tribunal was assisted at the hearings by the services of interpreters fluent in both the English and Mandarin languages.IDENTITY, RECEIVING COUNTRY AND MIGRATION HISTORY The applicant claims to be a citizen of Malaysia. She provided a copy of her passport to the Department with her application. I have reviewed this document on the Departmental file. I find the applicant is a citizen of Malaysia, which is the receiving country for the purposes of the refugee and complementary protection assessments. There is nothing before the Tribunal to suggest the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.

Decision

Reasons for decision

Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant in person at the hearing.DECISION The Tribunal affirms the decision under review.Dr Colin HuntlyMemberCorrected TranscriptORAL DECISION OF MEMBER HUNTLY [2.29 PM]BACKGROUND The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria, or on complementary protection grounds. Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complementary protection, together with any country information assessment prepared by DFAT, in accordance with Ministerial Direction No. 84.Credibility Before looking at my findings I note that on questions of credit I need to give the benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible. Greater weight may be given to one piece of evidence against another and there is no rule that I must hold a positive state of disbelief before making adverse assessments. I also note that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held objectively by an applicant in the context of refugee protection. Consistent with the various decisions commencing with those in the matter of Iyer,[1] if a decision-maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied. I also note that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.[1]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34]; affirmed in Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48]. In this respect I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015), which provides at [8]: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 the claims themselves. I also note that the same source, at [13] provides that: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 are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements of section 423A of the Act.

Ratio Decidendi

Legal Principle Established

The applicant was not represented in this application by a registered migration agent. The Tribunal was assisted at the hearings by the services of interpreters fluent in both the English and Mandarin languages.IDENTITY, RECEIVING COUNTRY AND MIGRATION HISTORY The applicant claims to be a citizen of Malaysia. She provided a copy of her passport to the Department with her application. I have reviewed this document on the Departmental file. I find the applicant is a citizen of Malaysia, which is the receiving country for the purposes of the refugee and complementary protection assessments. There is nothing before the Tribunal to suggest the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act. According to the applicant’s movement record, she arrived in Australia [in] August 2016, travelling on a UD-601 ETA Visitor visa. On 22 November 2016 the applicant applied for a protection visa. On 22 March 2017 a delegate of the Minister refused to grant the applicant a protection visa. The applicant applied to the Tribunal for a review of the delegate’s decision and provided a copy of the delegate’s decision record to the Tribunal with her application.Country information In addition to the country information surveyed in the delegate’s decision record, I have had regard to DFAT country information for Malaysia dated 13 December 2019 generally, relating to complementary protection claims,[2] and also in relation to state protection.[3] I have also had regard to the Department of Home Affairs publication “Malaysia Common Claims”, COISS, 3 July 2018. This country information was discussed with the applicant at the hearings.APPLICANT CLAIMS [2]At (49)-(53).[3]At (54)-(58).First hearing At the first hearing on 24 September 2020 I explained to the applicant the documents I had in my possession. I read to the applicant the summary of claims contained in the delegate’s record of decision as follows:· The applicant claims to have left Malaysia due to the country’s worsened political and economic situation.· She fears that if she were to return to Malaysia now or in the reasonably foreseeable future she would not be able to subsist or provide for her family. The applicant acknowledged that her original written claims were as summarised by the delegate. The applicant then told me that she wanted to add to those claims, indicating that she was a victim of unfortunate circumstances in Malaysia. The applicant arrived in Australia with her ex-husband ([Mr A], DOB [date]). The applicant stated that she married this person in 2014. The applicant believes that her ex-husband is also separately an applicant for protection in Australia. The applicant said that she had been the target of domestic violence by her former partner after six months of marriage; the applicant reported this domestic violence to Royal Malaysia Police (RMP), but they did not accept the applicant’s report. The applicant left her former partner in June 2020.