1831897 (Refugee) - [2024] AATA 1686

1831897 (Refugee) [2024] AATA 1686 (26 February 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831897
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:David James
DATE OF DECISION:  26 February 2024
DATE CORRIGENDUM
SIGNED:7 March 2024
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

1.Heading before paragraph 23 should state 'Review hearing - 26 February 2024' rather than 'Review hearing - 26 February 2022'.

David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831897
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:David James
DATE:26 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 February 2024 at 12:47pm

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 dependant.
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 4 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 Malaysia, applied for the visa on 2 March 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 30 October 2018. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of…

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.

Keep reading for free

Create a free CaseChat account to read 1831897 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 1686
Decision Date: 26 February 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who claimed to be of Chinese race and Buddhist faith, and who had left Malaysia due to riots, racism, corruption, and concerns about terrorism and crime. The applicant asserted that the Malaysian authorities were unable to protect them and that the situation in Malaysia was unsafe. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision to refuse the visa, which had found that while the applicant might face some discrimination, it would not reach the threshold for persecution, and that Malaysian authorities could provide protection.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for one of the prescribed reasons under the Act, and if not, whether there was a real risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia. The Tribunal was required to consider documentary evidence submitted by the applicant, including their visa application and passport details, as well as administrative records. The applicant had not been offered an interview by the Department.

The Tribunal considered the applicant's claims in light of country information and relevant guidelines. It noted that the "real risk" test for significant harm is equivalent to the "real chance" test for a well-founded fear. The Tribunal found that it had properly invited the applicant to a hearing to present oral evidence and arguments, having provided notice via email and SMS reminders to the updated contact details provided by the applicant. Despite these invitations, the applicant failed to attend the hearing. Consequently, the Tribunal proceeded to make a decision based on the material before it. The Tribunal affirmed the delegate's decision, finding that the applicant's fears were not well-founded and that there was no real risk of significant harm.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Malaysia they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, which have been considered by the Tribunal:·The applicant’s protection visa application submitted on 2 March 2018 and the annexed copy of the applicant’s Malaysian passport’s bio-data page; ·The applicant’s application for review of 30 October 2018 and the annexed Decision Record of 4 October 2018; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in his visa application, claims to have previously resided in Sandakan in the Malaysian State of Sabah and made the following claims (as summarised) that:·He is Chinese and a Buddhist;·He left Malaysia because of the riots and racism; because only the Bumiputra (Malays) are benefited; the government has poor leadership; there is corruption everywhere; and, because of terrorism, kidnap and serious crime;·He did not experience any harm in Malaysia;·He fears returning to Malaysia because he won’t survive because of the unsafe situation and because he is afraid of being a victim of terrorism and crime; ·He considered moving to a different state in Malaysia where his relatives stay but the situation there is even worse; ·As the authorities are unable protect themselves, they cannot protect him; and·He will relocate and return to Malaysia after everything is peaceful and there is no more criminal and terrorist activity. Department interview The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 4 October 2018 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant may face low levels of discrimination on return to Malaysia because of their race. However, with reference to the country information the delegate found that such discrimination would not reach the threshold to constitute persecution under s 5J of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found that the applicant could obtain protection from the Malaysian authorities such that there would not be a risk that they will suffer significant harm. Therefore, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 4 October 2018 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant may face low levels of discrimination on return to Malaysia because of their race. However, with reference to the country information the delegate found that such discrimination would not reach the threshold to constitute persecution under s 5J of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found that the applicant could obtain protection from the Malaysian authorities such that there would not be a risk that they will suffer significant harm. Therefore, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. On 30 September 2019, and again on 6 July 2021 and 17 August 2022, the applicant emailed the Tribunal requesting a Medicare letter and provided new contact details that were different to his details which he had previously provided with his application for the review. He provided an updated email address [and] a telephone number of [number] which the Tribunal then utilised to contact and update the applicant as to his matter.Invitation to attend a hearing On 30 January 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 26 February 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. On 19 February 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone number of [number] (the mobile number which the applicant had provided to the Tribunal as his updated contact number as outlined above at paragraph 19). The message read:Reminder – Your AAT hearing is on 26/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333. On 19 February July 2024, a further SMS Reminder was forwarded by the Tribunal to the applicant’s mobile number, it read:Reminder – Your AAT hearing is on 26/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.Review hearing - 26 February 2022

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (the Department), 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 EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Malaysia they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, which have been considered by the Tribunal:·The applicant’s protection visa application submitted on 2 March 2018 and the annexed copy of the applicant’s Malaysian passport’s bio-data page; ·The applicant’s application for review of 30 October 2018 and the annexed Decision Record of 4 October 2018; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in his visa application, claims to have previously resided in Sandakan in the Malaysian State of Sabah and made the following claims (as summarised) that:·He is Chinese and a Buddhist;·He left Malaysia because of the riots and racism; because only the Bumiputra (Malays) are benefited; the government has poor leadership; there is corruption everywhere; and, because of terrorism, kidnap and serious crime;·He did not experience any harm in Malaysia;·He fears returning to Malaysia because he won’t survive because of the unsafe situation and because he is afraid of being a victim of terrorism and crime; ·He considered moving to a different state in Malaysia where his relatives stay but the situation there is even worse; ·As the authorities are unable protect themselves, they cannot protect him; and·He will relocate and return to Malaysia after everything is peaceful and there is no more criminal and terrorist activity. Department interview