1808610 (Refugee)

[2024] AATA 1365

1808610 (Refugee) [2024] AATA 1365 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Billie Shi (MARN: 9792783)

CASE NUMBER:  1808610

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Mr S Norman

DATE:26 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 March 2024 at 2:40pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – race – Chines – religion – Buddhist – threats from village – physical assault – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155 pp.169-70
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 6 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants who claim to be citizens of Malaysia, applied for the visas on 24 October 2017. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

5. By hearing invitation letter dated 6 March 2024 (dispatched by email to the authorised recipient), the Tribunal advised the applicants it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 26 March 2024. The applicants were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing.

6. Regarding the hearing, the applicants did not respond to the Tribunal hearing invitation letter, as they were invited to do. Neither did they attend the Tribunal at the day and time of the scheduled hearing.

7. In the circumstances, and after considering the evidence, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

   The applicant’s claims:

8. In support of the Protection visa, and as recorded in the delegate’s decision, the applicants claimed:

   Assessing the applicant’s claims:

9. The applicants lodged a photocopy of the bio-data page of their Malaysia passport with the Department.  Based on this evidence, the Tribunal accepts the applicants re citizens of Malaysia and that Malaysia is their receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

10. That being said, the applicants did not provide sufficient detail to satisfy the Tribunal (ie) that they had a real chance of suffering serious or significant harm (including arising out of any alleged ‘serious religious discrimination’), nor that he was asked to leave his village for any reason at all.

11. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

12. Importantly, and in relation to protection claims, it is also ‘the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’.[1]

    [1] See s.5AAA of the Act, ‘Non-citizen’s responsibility in relation to protection claims’.

13. That said, based on the claims provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicants have a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk they will suffer significant harm.

14. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicants have a real chance of suffering serious or significant harm in Malaysia.  

    Finding:

15. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants protection visas.

    Mr S Norman
    Member