1728939 (Refugee) - [2024] AATA 600

1728939 (Refugee) [2024] AATA 600 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1728939
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Khanh Hoang
DATE:8 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2024 at 8:36am
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Catholic – attacks on churches – ongoing arguments with her Muslim neighbours – inability to attend church on Sundays – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Lama v MIMA [1999] FCA 918
Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997)
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 6 November 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 citizen of Malaysia, arrived in Australia [in] July 2017 on a UD-601 Electronic Travel Authority visa.
The applicant appeared before the Tribunal on 15 November 2023 and 14 December 2023 to give evidence and present arguments. The Tribunal conducted both hearings with the assistance of an interpreter in the Malay and English languages. The applicant was unrepresented in relation to the review.
The issue in this case is whether the applicant has a well-founded fear of persecution on return to Malaysia or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to Malaysia.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 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…

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 1728939 (Refugee)

Details

AGLC: 1728939 (Refugee) [2024] AATA 600
Case: [2024] AATA 600
Decision Date: 8 January 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman who claimed to fear persecution in Malaysia based on her Catholic religion. The applicant alleged she was unable to practice her religion due to work commitments on Sundays, had experienced trauma from an attack on a church where authorities were inefficient, and could not relocate within Malaysia due to her ties to her home, job, and family. The Administrative Appeals Tribunal was required to determine whether the applicant had a well-founded fear of persecution for a Convention reason, or alternatively, whether she met the criteria for complementary protection.

The Tribunal considered the applicant's claims in light of the Refugee Convention and the complementary protection provisions under the Act, as well as relevant guidelines and country information. The applicant's case was based on three main issues: societal disapproval of her religion, ongoing disputes with Muslim neighbours, and her inability to attend Sunday church services. The Tribunal also took into account the applicant's personal circumstances, including her family background, marital history, children, and employment.

The Tribunal found that Malaysia was the applicant's country of nationality and receiving country. It assessed the applicant's claims regarding her inability to practice her religion and the alleged inefficiency of authorities in dealing with past incidents. The Tribunal also considered the applicant's stated inability to relocate within Malaysia. The decision affirmed the reviewable decision.

Orders

Orders of the court

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Background

Background to the litigation

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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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEIntroduction In assessing the applicant’s claims, the Tribunal has considered information on the Department’s file before it, the oral evidence that the applicant gave to the Tribunal at the hearings, and independent information regarding relevant matters and current conditions in Malaysia. The Tribunal finds that Malaysia is the applicant’s country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments. It does so based on a copy of her passport that she provided to the Department and in the absence of any other evidence to the contrary. Protection visa application In her protection visa application, the applicant claimed to have a well-founded fear of persecution for the following reasons: ·she was unable to practise her Catholic religion in Malaysia as she works on Sundays, and this causes her to miss Sunday church services;·she has previously been traumatised when her church was attacked by extremists and the authorities were inefficient at dealing with the issue; and·she cannot relocate elsewhere in Malaysia as she does not wish to leave her house (which she owns), her job or her family.Tribunal hearingsThe applicant’s background The applicant was born in Sarawak into a Catholic Christian family of [specified family members]. Her family members remain Catholics, except for one brother who has converted to Muslim. She has [number of children] arising from two marriages. She was first married when she was [age] years old. She divorced at [age] and remarried when she was [age]. She separated from her second husband in approximately 2016, although they remain legally married because of the children. The applicant’s children all live together in an apartment in Johor Bahru that she bought in 2011. The applicant completed secondary school when she was [age], after which she was employed [and] working in [specified businesses]. Her first husband helped to get her a job at a [business] in [Country 1], where she worked from when she was [age] until she was [age] years old. She travelled between [Country 1] and Malaysia every day for work. She last resided in Johor Bahru before coming to Australia. The applicant told the Tribunal that she had travelled to [Country 1] in 2017 but that she did not find life comfortable there and she decided to travel to Australia. She prepared her protection visa application by herself. She stated that she understood what was in her application. At the hearings, the applicant confirmed that her claims centred on three issues related to her religion: societal disapproval, her ongoing arguments with her Muslim neighbours and her inability to attend church on Sundays. Societal disapproval and problems with her neighbours

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEIntroduction In assessing the applicant’s claims, the Tribunal has considered information on the Department’s file before it, the oral evidence that the applicant gave to the Tribunal at the hearings, and independent information regarding relevant matters and current conditions in Malaysia. The Tribunal finds that Malaysia is the applicant’s country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments. It does so based on a copy of her passport that she provided to the Department and in the absence of any other evidence to the contrary. Protection visa application In her protection visa application, the applicant claimed to have a well-founded fear of persecution for the following reasons: ·she was unable to practise her Catholic religion in Malaysia as she works on Sundays, and this causes her to miss Sunday church services;·she has previously been traumatised when her church was attacked by extremists and the authorities were inefficient at dealing with the issue; and·she cannot relocate elsewhere in Malaysia as she does not wish to leave her house (which she owns), her job or her family.Tribunal hearingsThe applicant’s background The applicant was born in Sarawak into a Catholic Christian family of [specified family members]. Her family members remain Catholics, except for one brother who has converted to Muslim. She has [number of children] arising from two marriages. She was first married when she was [age] years old. She divorced at [age] and remarried when she was [age]. She separated from her second husband in approximately 2016, although they remain legally married because of the children. The applicant’s children all live together in an apartment in Johor Bahru that she bought in 2011.