1725900 (Refugee) [2024] AATA 1521 (8 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1725900
MEMBER:Fraser Robertson
DATE:8 February 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 February 2024 at 9:32am
CATCHWORDS
REFUGEE – protection visa – Malaysia – political and economic conditions and financial hardship – outstanding loan repaid before tribunal hearing – new claim of fear of harm from ex-husband – drug use, physical violence, stalking and coercion – vague claims and inconsistent evidence – delay in raising claim about ex-husband – ex-husband and children not mentioned in application – original claims identical to other applicants, including brother and other people living at same address – admission of copying someone else’s application – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424AA(1)(b)(iii)
Migration Regulations 1994 (Cth), Schedule 2
CASES
ASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227
BBK15 v MIBP (2016) 241 FCR 150
BEH15 v MIBP [2019] FCAFC 184
Chan v MIEA (1989) 169 CLR 379
CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496
DQU16 v MHA [2021] HCA 10; 273 CLR 1
EIG17 v MICMA [2023] FedCFamC2G 804
Fox v Percy [2003] HCA 22; 214 CLR 118
GLD18 v MHA [2020] FCAFC 2
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MZAAJ v MIBP [2015] FCA 478
Randhawa v MILGEA (1994) 52 FCR 437
SZLVZ v MIAC [2008] FCA 1816
SZSPT v MIBP [2014] FCA 1245
SZTAL v MIBP [2017] HCA 34; 262 CLR 362
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 dependants.
STATEMENT OF DECISION AND REASONS
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
For these reasons, the decision under review should be affirmed.
BACKGROUND
The applicant, a [age]-year-old female from Malaysia, arrived in Australia [in] July 2017. She unsuccessfully attempted to lodge a protection visa application in early August 2017 before successfully applying two weeks later.
That application claimed that the applicant left Malaysia because of a "political and economic issue" and that if she returned to Malaysia she would experience "no job,cannot support my family and myself" [sic].
DELEGATE'S DECISION
The applicant was not invited to attend an interview with the Department. The delegate refused to grant the applicant a protection visa on 18 October 2017.
The delegate was not satisfied that the applicant…
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- 1725900 (Refugee) [2024] AATA 1521
- Case
- [2024] AATA 1521
- Decision Date
CaseChat Overview and Summary
The court considered the definition of a well-founded fear of persecution as outlined in the Migration Act, which requires a genuine fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and a real chance of such persecution upon return to the receiving country, provided effective protection measures are not available. The court noted that the applicant's original claims were identical to those of other applicants, and the applicant admitted to copying another person's application. The court found the new claims regarding the ex-husband to be vague and inconsistent, and the delay in raising these claims, along with the fact that the ex-husband and children were not mentioned in the original application, weighed against their credibility. The court also had regard to relevant Department of Home Affairs guidelines and Department of Foreign Affairs and Trade country information.
The court affirmed the decision under review, finding that the applicant had not established a well-founded fear of persecution.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I must take account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.[43][43]See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section. ATTACHMENT - Extract from Migration Act 1958 For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.