1808148 (Refugee) - [2024] AATA 2488

1808148 (Refugee) [2024] AATA 2488 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1808148
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Jason Pennell
DATE:8 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 April 2024 at 12.42pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnic Chinese and fear of harm from criminal gang – demand for protection money for father’s business – business ransacked and applicant attacked – inaction by police – relocated then returned, with continuing harassment – credibility – delay in applying for protection – applied after onshore tourist visa refused – no supporting evidence provided – education and employment – passage of time – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Savvin v MIMA [1999] FCA 1265
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT [1997] FCA 423

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 Home Affairs on 19 March 2018 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 18 December 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in
s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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 1808148 (Refugee)

Details

AGLC: 1808148 (Refugee) [2024] AATA 2488
Case: [2024] AATA 2488
Decision Date: 8 April 2024

CaseChat Overview and Summary

The applicant, an ethnic Chinese national, sought review of a decision affirming the refusal of a protection visa. The applicant claimed to fear harm from a criminal gang in Malaysia, alleging they demanded protection money for his father's business, subsequently ransacked the business, and attacked him. He further asserted that the police were inactive in addressing these issues, leading to his relocation and subsequent return, during which the harassment continued.

The primary legal issues before the court were whether the applicant had established a well-founded fear of persecution for a Convention reason, and whether the delegate had erred in assessing the applicant's credibility and the country information relevant to Malaysia. The court was required to consider the applicant's delay in applying for protection, which occurred after the refusal of his onshore tourist visa, and the absence of supporting evidence for his claims.

In its reasoning, the court considered the applicant's account in light of the available country information concerning the situation of ethnic Chinese in Malaysia and the prevalence of criminal gang activity. The court found that the delegate had adequately assessed the applicant's credibility, taking into account the inconsistencies and lack of corroboration in his evidence, as well as the significant delay in lodging his protection visa application. The court affirmed the delegate's conclusion that the applicant had not established a well-founded fear of persecution. The decision under review was affirmed.

Orders