DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 04 June 2019 at 2:01pm
CATCHWORDS REFUGEE – protection visa – Malaysia – particular social group – polygamous relationship – single mother – given birth without presence of child’s father – partner’s migration history – imputed ‘concubine’ status – living in a distorted and chaotic society – credibility concerns – not genuinely held subjective fear of harm – ability to adapt to Malaysian society – criminality and corruption – State protection – burden of proof – decision under review affirmed
This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 October 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
RELEVANT MIGRATION HISTORY
Principal applicant
The principal applicant’s movement history is as follows:
·Entered Australia from Malaysia on a [Visitor] visa [in] May 2005 and departed to Malaysia [in] May 2005.
·Entered Australia from Malaysia on a [Visitor] visa [in] June 2005.
Granted a [Student] visa on 11 August 2005.
·Departed Australia for Malaysia [in] August 2005.
·Entered Australia from Malaysia on a [Student] visa [in] August 2005 and departed to Malaysia [in] December 2005.
·Entered Australia from Malaysia on a [Student] visa [in] February 2006.
Granted a [second] Student visa on 22 April 2006.
·Departed Australia for Malaysia [in] May 2006.
·Entered Australia from Malaysia on [the] Student visa [in] June 2006.
Granted a [third] Student visa on 17 July 2006.
·Departed Australia for Malaysia [in] November 2006.
·Entered Australia from Malaysia on [the] Student visa [in] November 2006 and departed to Malaysia [in] February 2007.
·Entered Australia from Malaysia on [the] Student visa [in] February 2007 and departed to Malaysia [in] July 2007.
·Entered Australia from Malaysia on [the] Student visa [in] July 2007 and departed to [City 1 in] December 2007.
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.
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Details
AGLC
1727040 (Refugee) [2019] AATA 6867
Case
[2019] AATA 6867
Decision Date
CaseChat Overview and Summary
The applicant, a citizen of Sri Lanka, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant claimed to fear persecution in Sri Lanka due to her status as a single mother who had given birth outside of a formal marriage, alleging this would lead to her being imputed with the status of a 'concubine' and facing harm. She also argued that her partner's migration history was relevant to her claim.
The primary legal issues before the court were whether the applicant would, if returned to Sri Lanka, hold a *well-founded fear* of persecution for reasons of membership of a *particular social group*, and whether Australia would be under an obligation to grant her a protection visa. The court was required to consider the applicant's subjective fear of harm, her credibility, and the availability of state protection in Sri Lanka.
The court affirmed the decision under review, finding that the applicant had not established a well-founded fear of persecution. While acknowledging the applicant's difficult circumstances, the court found that her subjective fear was not genuinely held, noting inconsistencies in her evidence and her ability to adapt to Malaysian society. The court also considered the general conditions in Sri Lanka, including issues of criminality and corruption, but concluded that these did not establish a real chance of serious harm to the applicant. The court applied the principles established in refugee law concerning the assessment of subjective and objective fear, the definition of a particular social group, and the availability of state protection.