1803216 (Refugee)

Case [2022] AATA 570

1803216 (Refugee) [2022] AATA 570 (18 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803216

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Vlahos

DATE:18 January 2022

PLACE OF DECISION:  Melbourne

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

This Statement was made on 18th January 2022 at 1.00PM

CATCHWORDS

REFUGEE – protection visa – Malaysia – ethnicity and religion – Chinese Buddhist – discrimination in religious belief, education and employment – credibility – country information – consent to decision without hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 65, 104

Migration Regulations 1994 (Cth), Schedule 2

Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(b)

CASES

Abebe v Commonwealth (1999) 197 CLR 510

Chand v MIEA [1997] FCA 1198

Emiantor v MIMA (1998) 98 ALD 635; Emiantor v MIMA (FCA, Full Court, 20 July 1998)

Iyer v MIMA [2000] FCA 52; [2000] FCA 1788

Kopalapillai v MIMA (1998) 86 FCR 547

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIEA v Wu Shan Liang (1996) 185 CLR 259

MIMA v Lay Lat (2006) 151 FCR 214

MIMA v Rajalingam (1999) 93 FCR 220

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60

Selvadurai v MIEA (1994) 34 ALD 347

Sivalingam v MIMA [1998] FCA 1167

Sundararaj v MIMA [1999] FCA 76

SZBEL v MIMIA (2006) 228 CLR 152

SZQNO v MIAC [2012] FCA 326

WAKK v MIMIA [2005] FCAFC 225

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    APPLICANT IDENTITY

  2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 7 September 2017 and the delegate notified the applicant that the application had been refused by a letter dated 25 January 2018.

  3. The applicant arrived in Australia [in] March 2017 as a holder of [Visa 1]. On 28 June 2017 the applicant applied for [Visa 2] which was refused on 9 August 2017. On 17 September 2017 the applicant applied for a Protection visa which the Department refused. The Tribunal has had regard to the Department files and the information on which the decision of the delegate, and 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.[1]…

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1803216 (Refugee) [2022] AATA 570
Case
[2022] AATA 570
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, who is of Chinese ethnicity and Buddhist religion, claimed to fear persecution in Malaysia due to discrimination based on his ethnicity and religion, specifically in areas of religious belief, education, and employment. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a person in respect of whom Australia had protection obligations due to a well-founded fear of persecution.

The primary legal issues before the Tribunal were whether the applicant's claims of discrimination and fear of persecution in Malaysia were sufficiently particularised and credible, and whether his regular and lawful departures from Malaysia prior to arriving in Australia undermined his claimed fear. The Tribunal also considered its procedural obligations, including the applicant's consent to have his review determined on the papers without a hearing, a measure adopted due to COVID-19 pandemic restrictions. The Tribunal was guided by the principles that it is the applicant's responsibility to specify and establish their claim, and that a lack of genuine subjective fear negates the need to consider objective bases for that fear.

The Tribunal reasoned that the applicant had failed to provide sufficient particulars to substantiate his claims of persecution based on his Chinese ethnicity and Buddhist religion. The applicant's protection application lacked details on how these factors had led to persecution or fear of persecution in Malaysia. Furthermore, the Tribunal noted adverse credibility findings made by the primary decision-maker regarding the lack of particularisation and the applicant's lawful departure from Malaysia. In light of the applicant's explicit instruction, through his migration agent, to proceed with the review based solely on the documents before the Tribunal, and the absence of further evidence or particulars from the applicant, the Tribunal concluded that the applicant had not established a well-founded fear of persecution.

Accordingly, the Tribunal affirmed the decision under review, finding that the applicant had not demonstrated that he faced a real chance of serious harm or a real risk of significant harm in Malaysia for the essential and significant reason of his Chinese ethnicity.

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 represented in this Application for review by [a registered migration agent]. On 29 September 2021 the Tribunal wrote to the applicant’s migration agent to enquire whether the applicant would consider having his review heard by the Tribunal via a video hearing. The Tribunal that this process had been made available as a means of hearing applicants’ applications because of the restrictions imposed due to the persistence of the Covid-19 Pandemic. The applicant was advised to respond to the Tribunal’s letter no later than 6 October 2021 so that arrangement can be made for a video hearing. On 13 January 2022 the Tribunal wrote a further letter to the applicant’s representative in the following terms:I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.We refer to your previous email to the Tribunal dated 29 September 2021 which stated that the applicant did not wish to attend a video hearing before the Tribunal, and requested the Tribunal proceed with the application based on the documents on file.Can you confirm that it is the applicant's intention that the Tribunal make a decision on the papers based on the information currently before it, without holding a hearing?Please provide confirmation via return email in regards to the applicant's intentions as soon as possible.Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services: In response to the Tribunal’s correspondence, the applicant’s migration agent wrote to the Tribunal on 13 January 2022 responding as follows: Thank you for your email. We have once again conferred with the client and he wishes that the application to proceed without hearing.Yours Sincerely, [Mr A] ([Registered migration agency]) 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:·He is of Chinese ethnicity ·He feels like a second-class citizen ·He has been discriminated in many areas of life such as religious belief, education and employment. Evidence The applicant claims to fear being persecuted in Malaysia on the basis of his ethnicity – he is being an ethnic ‘Chinese’ and of the Buddhist religion. In support of his claims for protection, the applicant was informed by the Tribunal that if he had relevant information concerning his claim for protection, he should forward them to the Tribunal to consider. Nothing was subsequently provided by the applicant to the Tribunal. The Tribunal referred to the applicant’s Protection application and noted that he provided no details concerning how his Chinese ethnicity and his Buddhist religion had caused him to suffer persecution or fear persecution in Malaysia. The applicant was also on notice of adverse credibility findings made against him by the delegate in the first instance, namely, that the applicant’s claims were insufficiently particularised and that he appeared to have left Malaysia in a lawful and orderly manner prior to his arrival in Australia.

Evidence

Evidence Before The Court

The Tribunal has regard to the President’s Direction COVID-19 Special Measures Practice Direction, Migration and Refugee Division, dated 27 April 2020. The Tribunal also had regard to the President’s Direction Conducting Migration and Refugee Reviews dated 1 August 2018. In particular: ·That members are to take all reasonable steps to complete cases allocated to them 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 for 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 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 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 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.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 of his Chinese ethnicity. 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 represented in this Application for review by [a registered migration agent]. On 29 September 2021 the Tribunal wrote to the applicant’s migration agent to enquire whether the applicant would consider having his review heard by the Tribunal via a video hearing. The Tribunal that this process had been made available as a means of hearing applicants’ applications because of the restrictions imposed due to the persistence of the Covid-19 Pandemic. The applicant was advised to respond to the Tribunal’s letter no later than 6 October 2021 so that arrangement can be made for a video hearing. On 13 January 2022 the Tribunal wrote a further letter to the applicant’s representative in the following terms:I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.We refer to your previous email to the Tribunal dated 29 September 2021 which stated that the applicant did not wish to attend a video hearing before the Tribunal, and requested the Tribunal proceed with the application based on the documents on file.Can you confirm that it is the applicant's intention that the Tribunal make a decision on the papers based on the information currently before it, without holding a hearing?Please provide confirmation via return email in regards to the applicant's intentions as soon as possible.Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services: In response to the Tribunal’s correspondence, the applicant’s migration agent wrote to the Tribunal on 13 January 2022 responding as follows: Thank you for your email. We have once again conferred with the client and he wishes that the application to proceed without hearing.Yours Sincerely, [Mr A] ([Registered migration agency]) Accordingly, the Tribunal has proceeded to determine this application without taking further steps to take evidence from the applicant.CONSIDERATION OF CLAIMS

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 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.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 of his Chinese ethnicity. 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 represented in this Application for review by [a registered migration agent]. On 29 September 2021 the Tribunal wrote to the applicant’s migration agent to enquire whether the applicant would consider having his review heard by the Tribunal via a video hearing. The Tribunal that this process had been made available as a means of hearing applicants’ applications because of the restrictions imposed due to the persistence of the Covid-19 Pandemic. The applicant was advised to respond to the Tribunal’s letter no later than 6 October 2021 so that arrangement can be made for a video hearing. On 13 January 2022 the Tribunal wrote a further letter to the applicant’s representative in the following terms:I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.We refer to your previous email to the Tribunal dated 29 September 2021 which stated that the applicant did not wish to attend a video hearing before the Tribunal, and requested the Tribunal proceed with the application based on the documents on file.Can you confirm that it is the applicant's intention that the Tribunal make a decision on the papers based on the information currently before it, without holding a hearing?Please provide confirmation via return email in regards to the applicant's intentions as soon as possible.Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services: