1726388 (Refugee) - [2023] AATA 4674

1726388 (Refugee) [2023] AATA 4674 (13 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1726388

COUNTRY OF REFERENCE: Malaysia
MEMBER:Amanda Goodier
DATE:13 December 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 December 2023 at 11:55am

CATCHWORDS
REFUGEE – protection visa – Malaysia – foreign exchange investment scheme – threats from criminal gangs – physical assault – attack on home – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa on 15 May 2017. The delegate refused to grant the visa on the basis that that the delegate did not accept that the applicant faced a real chance of serious harm for his involvement in a failed Forex investment program from the authorities or any other person on his return to Malaysia. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on his return to Malaysia. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was granted 14 days from the date of the Tribunal hearing to provide additional evidence in support of his claims.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on…

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 1726388 (Refugee)

Details

AGLC: 1726388 (Refugee) [2023] AATA 4674
Case: [2023] AATA 4674
Decision Date: 13 December 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who claimed to be a Malaysian citizen. The applicant arrived in Australia on a visitor visa and subsequently applied for a protection visa, asserting claims against Malaysia as his country of nationality and the receiving country. The Tribunal, presided over by Amanda Goodier, was tasked with determining whether Australia owed protection obligations to the applicant under the 'refugee' criterion or complementary protection grounds.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether he was a person in respect of whom Australia had protection obligations under the 'refugee' criterion or on other 'complementary protection' grounds. This required an assessment of the applicant's claims against Malaysia, considering his asserted Malaysian citizenship and the circumstances he described. The Tribunal also considered whether the applicant was a member of the same family unit as a person who met these criteria and held a protection visa.

The Tribunal found that the applicant was a Malaysian citizen, having travelled to Australia on a genuine Malaysian passport and consistently identifying as such. In its reasoning, the Tribunal applied the principle that an applicant's statements should be given the benefit of the doubt if credible, coherent, and plausible, and not contrary to known facts, after all available evidence has been considered. However, the Tribunal concluded that the applicant did not satisfy the criterion in section 36(2) of the relevant Act, as there was no suggestion that he qualified as a member of the same family unit as another person who met the protection visa criteria. 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

The applicant travelled to Australia on a genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.Background information In his protection visa application, the applicant claims to be a citizen of Malaysia, stating he was born in Klang, Selangor, Malaysia in [specified year]. He indicated his parents were Malaysian citizens. He speaks, reads and writes both Malay and English. His occupation was listed as “Associate”. The applicant indicated he had previously visited Australia on a holiday visa and had returned to Malaysia when that visa expired. He has also visited [Country 1] for a short holiday on three occasions in 2015 and 2016. He married in 1990 and has [children], [genders specified]. His family remains in Malaysia. The applicant indicated he had received about [number] years education in Malaysia, withdrawing from a [course 1] at [a named college] in [year]. He provided his address in Klang, Selangor, Malaysia as being the same from birth until his departure from Malaysia for Australia in May 2017. The applicant arrived in Australia as the holder of a visitor visa [in] May 2017. He applied for the protection visa on 15 May 2017. The applicant confirmed at hearing that he had completed the application himself without any assistance. It was signed by him, and he was aware of the contents. At the hearing the applicant confirmed his date and place of birth as well as his residential address in Malaysia. He told the Tribunal that he was born in the family home and lived there until his departure for Australia in May 2017. It was the family home, and he now owns the land it was on. His parents are deceased, and he inherited about [number] acres from his parents. His brother and family live in a second house on the land and [other family members] family live in a third house. His wife lives in Kuala Lumpur with their eldest son who is [an occupation 1], [details of children and family member deleted]. The applicant lived in [Country 1] for about two years when aged [age range] working a job in [industry 1]. As it was only a four-hour drive, he would go home every weekend to spend with his family. Where he lived in Klang was about a one-hour drive from Kuala Lumpur. The applicant was vague about the amount of contact with his family. He told the Tribunal that he sometimes speaks to them but limits any contact so he cannot be traced via his phone to Australia, and that is why he did not know much about his family. When his father died, the land owned by his father outside of the land the family home is on was sold and the funds divided between the applicant and his siblings. The applicant lived in [Town 1] from 2017 until recently. He moved to Langford about two and half years ago. He holds the lease on the property and rents out the rooms to others. They share the costs of the property and buy their own food. He quit his job in [Town 1] in June 2023 and survives on his savings and by selling off his [vehicles] that he has collected since his arrival in Australia.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant travelled to Australia on a genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.Background information In his protection visa application, the applicant claims to be a citizen of Malaysia, stating he was born in Klang, Selangor, Malaysia in [specified year]. He indicated his parents were Malaysian citizens. He speaks, reads and writes both Malay and English. His occupation was listed as “Associate”. The applicant indicated he had previously visited Australia on a holiday visa and had returned to Malaysia when that visa expired. He has also visited [Country 1] for a short holiday on three occasions in 2015 and 2016. He married in 1990 and has [children], [genders specified]. His family remains in Malaysia. The applicant indicated he had received about [number] years education in Malaysia, withdrawing from a [course 1] at [a named college] in [year]. He provided his address in Klang, Selangor, Malaysia as being the same from birth until his departure from Malaysia for Australia in May 2017. The applicant arrived in Australia as the holder of a visitor visa [in] May 2017. He applied for the protection visa on 15 May 2017. The applicant confirmed at hearing that he had completed the application himself without any assistance. It was signed by him, and he was aware of the contents. At the hearing the applicant confirmed his date and place of birth as well as his residential address in Malaysia. He told the Tribunal that he was born in the family home and lived there until his departure for Australia in May 2017. It was the family home, and he now owns the land it was on. His parents are deceased, and he inherited about [number] acres from his parents. His brother and family live in a second house on the land and [other family members] family live in a third house. His wife lives in Kuala Lumpur with their eldest son who is [an occupation 1], [details of children and family member deleted].

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[4] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts. [4] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant travelled to Australia on a genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.Background information In his protection visa application, the applicant claims to be a citizen of Malaysia, stating he was born in Klang, Selangor, Malaysia in [specified year]. He indicated his parents were Malaysian citizens. He speaks, reads and writes both Malay and English. His occupation was listed as “Associate”. The applicant indicated he had previously visited Australia on a holiday visa and had returned to Malaysia when that visa expired. He has also visited [Country 1] for a short holiday on three occasions in 2015 and 2016. He married in 1990 and has [children], [genders specified]. His family remains in Malaysia. The applicant indicated he had received about [number] years education in Malaysia, withdrawing from a [course 1] at [a named college] in [year]. He provided his address in Klang, Selangor, Malaysia as being the same from birth until his departure from Malaysia for Australia in May 2017. The applicant arrived in Australia as the holder of a visitor visa [in] May 2017. He applied for the protection visa on 15 May 2017. The applicant confirmed at hearing that he had completed the application himself without any assistance. It was signed by him, and he was aware of the contents.