1830033 (Refugee) - [2024] AATA 3854

1830033 (Refugee) [2024] AATA 3854 (16 August 2024)

CORRIGENDUM

DIVISION: Migration & Refugee Division

CASE NUMBER: 1830033 COUNTRY OF REFERENCE: Indonesia

MEMBER: Jennifer Ermert

DATE OF DECISION: 16 August 2024

DATE CORRIGENDUM

SIGNED: 27 August 2024

PLACE OF DECISION: Melbourne

AMENDMENT: The following correction is made to the decision:
The word ‘Malaysia’ at the end of paragraph 63 is to be replaced with ‘Indonesia’.

Jennifer Ermert Member

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1830033 COUNTRY OF REFERENCE: Indonesia

MEMBER: Jennifer Ermert

DATE: 16 August 2024

PLACE OF DECISION: Melbourne

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

Statement made on 16 August 2024 at 4:30pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – particular social group – victim of loan shark – physical assault – fear of killing – eviction from home – delay in applying for protection – state protection – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v Minister for Home Affairs (2020) 276 FCR 644
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347

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 12 October 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 Indonesia, applied for the visa on 2 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations, nor is the applicant a member of the same family unit as such a person who holds a protection visa of the same class as that applied for by the applicant.
The applicant appeared before the Tribunal on 24 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her daughter [named] who is also a protection visa applicant and whose application is currently under consideration by the Department.
The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian 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 (Cth) (the Regulations). An applicant for the visa must…

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 1830033 (Refugee)

Details

AGLC: 1830033 (Refugee) [2024] AATA 3854
Case: [2024] AATA 3854
Decision Date: 16 August 2024

CaseChat Overview and Summary

The applicant, a national of Indonesia, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in Indonesia due to being a victim of loan sharks, experiencing physical assault, and facing threats of killing and eviction from their home. The applicant also argued they belonged to a particular social group.

The Administrative Appeals Tribunal was required to determine whether the applicant had a well-founded fear of persecution for a reason specified in section 36(2)(a) of the *Migration Act 1958* (Cth), considering the risk of harm from loan sharks and the availability of state protection and internal relocation within Indonesia. The Tribunal also had to assess whether the applicant constituted a particular social group.

The Tribunal found that while the applicant had experienced harm, the evidence did not establish a well-founded fear of persecution for a Convention reason. It noted that the applicant had not provided sufficient evidence to demonstrate that the loan sharks were acting with the complicity or at the instigation of the Indonesian state, nor that the state was unable or unwilling to protect the applicant. The Tribunal also concluded that the applicant did not constitute a particular social group as defined by the Convention. The Tribunal affirmed the Minister's decision.

Orders