1708175 (Refugee)

Case [2021] AATA 1004

1708175 (Refugee) [2021] AATA 1004 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708175

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE:30 March 2021

PLACE OF DECISION:  Perth

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

Statement made on 30 March 2021 at 9:50am

CATCHWORDS
REFUGEE – protection visa – Malaysia – transcription error in the delegate’s decision record – validity of decision not affected – political opinion – involvement with the Bersih opposition political movement – failed to provide any relevant supporting evidence – lack of engagement in the review process – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 67, 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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection dated 20 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

    APPLICANT IDENTITY

  2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 7 March 2017, and the delegate notified the applicant that the application had been refused by letter dated 13 April 2017.[1] 

    [1]There has clearly been a transcription error in the delegate’s decision record for the refusal decision in this application.  A visa application which was lodged with the Department on 7 March 2017 could not have been decided on 20 February of the same year.  Given the saving provision at s.67(5) of the Act, this transcription error ‘does not affect the validity of the decision’.

  3. The applicant arrived in Australia [in] December 2016 as the holder of a UD-601 Visitor’s ETA visa.  The Tribunal has had regard to the Departmental files and the information on which the decision of the delegate, relating to identity, was based. 

  4. Accordingly, on the basis of the foregoing evidence, the Tribunal finds that the applicant is a national of Malaysia.  Having established the applicant’s identity to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicant is Malaysia. 

    RELEVANT LAW

  5. The law relevant to this application for review is discussed at ‘Attachment - Extract from Migration Act 1958’.

    PRESIDENT’S DIRECTION

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AGLC
1708175 (Refugee) [2021] AATA 1004
Case
[2021] AATA 1004
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant claimed to have been involved with the 'Bersih' opposition political movement in Malaysia and feared imprisonment if returned. The delegate had refused the visa, finding the applicant did not face a real chance of serious or significant harm, partly due to a lack of particulars in the claims and the applicant's regular lawful departures from Malaysia prior to arriving in Australia. The Administrative Appeals Tribunal (AAT) was required to determine whether the delegate's decision should be affirmed.

The Tribunal was required to consider the applicant's claims for protection, specifically whether he had a well-founded fear of persecution based on his political activities. A key issue was the applicant's engagement with the review process, particularly his decision to decline participation in a scheduled hearing and consent to a decision on the papers. The Tribunal also had to consider the evidentiary burden on the applicant to establish his claims, as well as relevant policy guidelines and country information.

The Tribunal affirmed the delegate's decision. It noted that the applicant had attended an initial hearing but subsequently elected not to participate in a further hearing, consenting to a decision based on the existing material. The Tribunal emphasised that it is the applicant's responsibility to provide sufficient evidence to establish their claim, and that the Tribunal is not obliged to assist in specifying or establishing the claim. Given the applicant's lack of engagement and failure to provide relevant supporting evidence, particularly concerning his alleged involvement with the 'Bersih' movement and any resulting fear of persecution, the Tribunal concluded that the applicant had not established that he met the criteria for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant was invited to appear before the Tribunal (as initially constituted) to give evidence and present arguments at a hearing on 25 May 2018 (the first fearing). Following reallocation of the application for review to the Tribunal as presently constituted, the applicant was once again invited to appear before the Tribunal to give evidence and present arguments at a hearing on 17 March 2021 (the declined hearing). The applicant was not represented in this application by a registered migration agent. The applicant attended the first hearing and the Tribunal was assisted at this hearing by an interpreter, fluent in both the English and Malaysian languages. The Tribunal’s 2 March 2021 invitation to attend the hearing scheduled for 17 March 2021 advised the applicant as follows:We have considered the material before us but we are unable to make a favourable decision on this information alone.You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. We are arranging for you to appear by telephone. Attached to this invitation was a blank ‘Response to hearing invitation’ form which contained the following first question at Part 1(A):Will you take part in the hearing scheduled for 17 March 2021?(Please indicate ‘Yes’ or ‘No’ for each review applicant.)[Applicant’s name redacted]☐ Yes☐No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear By email dated 10 March 2021 at 11:16am, the applicant returned his completed blank ‘Response to hearing invitation’ form including the following responses:[Applicant’s name redacted]☐ Yes⊠No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appearYour telephone number (preferably landline): [Telephone number redacted]Your email: [Email address redacted] Accordingly, the Tribunal has proceeded to determine this application without taking further steps to take evidence from the applicant.CONSIDERATION OF CLAIMS The following summary of the applicant’s claims for protection is included at Part 4 of the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant when he applied for a review of the delegate’s decision:· The applicant claims he was involved with a group called ‘Bersih’ that was claiming the general election must be clean and fair. The government was very angry and hated this group. The government decided to catch and imprison members of this group. He came to Australia to run away from Malaysian government;· He claims he was attacked by acid gas and water;· He thinks if he returns to Malaysia, he will be imprisoned;· He did not seek help in the country because the authority supported the government;· He did not try to relocate elsewhere in Malaysia because it is the ‘authority’ and they are everywhere. They had a lot of connection in the country and that should not be a problem for them to find him.

Evidence

Evidence Before The Court

I have had regard to the President’s Direction 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;[2] 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.[3] [2]Consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b) at [2.1].[3]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.[4] 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. [4]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 an 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.[5] 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.[6][5]Section 5H(1)(a) of the Act.[6]Section 5H(1)(b) of the Act.

Decision

Reasons for decision

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.ISSUES TO BE DETERMINED AND DECISION SUMMARY The delegate refused to grant the applicant the visa on the basis that he did not face either a real chance of serious harm or a real risk of significant harm in Malaysia now, or in the reasonably foreseeable future, for the essential and significant reason he was involved with the ‘Bersih’ opposition political movement in that country prior to his departure in December 2016. This finding was based in part upon the lack of particulars in the applicant’s claims for protection and also on his regular and lawful departure from Malaysia prior to his arrival in Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant was invited to appear before the Tribunal (as initially constituted) to give evidence and present arguments at a hearing on 25 May 2018 (the first fearing). Following reallocation of the application for review to the Tribunal as presently constituted, the applicant was once again invited to appear before the Tribunal to give evidence and present arguments at a hearing on 17 March 2021 (the declined hearing). The applicant was not represented in this application by a registered migration agent. The applicant attended the first hearing and the Tribunal was assisted at this hearing by an interpreter, fluent in both the English and Malaysian languages. The Tribunal’s 2 March 2021 invitation to attend the hearing scheduled for 17 March 2021 advised the applicant as follows:We have considered the material before us but we are unable to make a favourable decision on this information alone.You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. We are arranging for you to appear by telephone. Attached to this invitation was a blank ‘Response to hearing invitation’ form which contained the following first question at Part 1(A):Will you take part in the hearing scheduled for 17 March 2021?(Please indicate ‘Yes’ or ‘No’ for each review applicant.)[Applicant’s name redacted]☐ Yes☐No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear By email dated 10 March 2021 at 11:16am, the applicant returned his completed blank ‘Response to hearing invitation’ form including the following responses:[Applicant’s name redacted]☐ Yes⊠No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appearYour telephone number (preferably landline): [Telephone number redacted]Your email: [Email address redacted]

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,[19] 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.[20] [19]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].[20]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 considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.ISSUES TO BE DETERMINED AND DECISION SUMMARY The delegate refused to grant the applicant the visa on the basis that he did not face either a real chance of serious harm or a real risk of significant harm in Malaysia now, or in the reasonably foreseeable future, for the essential and significant reason he was involved with the ‘Bersih’ opposition political movement in that country prior to his departure in December 2016. This finding was based in part upon the lack of particulars in the applicant’s claims for protection and also on his regular and lawful departure from Malaysia prior to his arrival in Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant was invited to appear before the Tribunal (as initially constituted) to give evidence and present arguments at a hearing on 25 May 2018 (the first fearing). Following reallocation of the application for review to the Tribunal as presently constituted, the applicant was once again invited to appear before the Tribunal to give evidence and present arguments at a hearing on 17 March 2021 (the declined hearing). The applicant was not represented in this application by a registered migration agent. The applicant attended the first hearing and the Tribunal was assisted at this hearing by an interpreter, fluent in both the English and Malaysian languages. The Tribunal’s 2 March 2021 invitation to attend the hearing scheduled for 17 March 2021 advised the applicant as follows:We have considered the material before us but we are unable to make a favourable decision on this information alone.You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. We are arranging for you to appear by telephone.