1835910 (Refugee) - [2024] AATA 3631

1835910 (Refugee) [2024] AATA 3631 (31 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1835910
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Don Smyth
DATE:31 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 July 2024 at 1:25pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Shi’a Muslim in Sunni majority country – application prepared by acquaintance – new claim as member of particular social group made pre-hearing – bisexual man – relationship with another man, now a transgender woman – participation in protests – teased and cursed – credibility – vague claims and limited and inconsistent evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
Wang v MIMA (2000) 105 FCR 548
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
BACKGROUND

The applicant claims to be a Malaysian citizen and has provided a copy of the bio data page of his Malaysian passport. I accept that he is a national of Malaysia.
The applicant applied for a protection visa on 11 July 2018. On 6 December 2018 a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
The applicant was represented in relation to the review, although his representative did not attend the Tribunal hearings.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
According to information provided in the protection visa application, the applicant was born in Perak, Malaysia in [Year].
The applicant indicated that he had never married. He described his ethnic group as Malay and his religion as Muslim Shi’a. He gave his occupation as ‘freelance’.
The applicant indicated that he had arrived in Australia [in] February 2018.
The applicant set out written claims in the application. He stated that he left Malaysia because of his religion. He stated that he was a practising Shi’a Muslim and appeared to indicate that this was different to his family. He stated that there were limited religious freedoms in Malaysia. He stated that with the law in effect the Malaysian governments only allowed Malaysians to follow the Sunni school of thought, effectively forbidding and subjecting to punishment by law promoting any other religion by books or other forms of social media.
The applicant stated that he would be punished by law and forced to change his religion. He stated that conversion from Sunni to Shi’a was not acceptable in Malaysia. He stated that he lived in fear if the…

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 1835910 (Refugee)

Details

AGLC: 1835910 (Refugee) [2024] AATA 3631
Case: [2024] AATA 3631
Decision Date: 31 July 2024

CaseChat Overview and Summary

The applicant, a Shi'a Muslim from Malaysia, sought review of a decision to refuse him a protection visa. The applicant claimed he feared persecution in Malaysia due to his religion, asserting that the country officially sanctioned only the Sunni school of thought and that adherence to Shi'a Islam was punishable by law. He also alleged that conversion from Sunni to Shi'a was unacceptable and that he lived in fear of being reported to the authorities. The delegate of the Minister had previously refused the visa, finding that country information did not support a real chance of persecution or significant harm based on religion.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether he satisfied the refugee criterion under section 36(2)(a) of the Act, or alternatively, the complementary protection criterion under section 36(2)(aa). This involved assessing the applicant's claims of religious persecution against available country information regarding the treatment of Shi'a Muslims in Malaysia and the legal framework governing religious practice.

The court considered the applicant's extensive oral evidence, alongside written submissions and country information. It noted that the applicant's claims regarding religious freedom and the legal status of Shi'a Islam in Malaysia were vague and inconsistent, with limited supporting evidence. The court applied the principles outlined in sections 36(2A) and (2B) of the Act concerning the meaning of significant harm and the circumstances under which a real risk of such harm is not established. The court also had regard to Ministerial Direction No. 84, the 'Refugee Law Guidelines', 'Complementary Protection Guidelines', and country information assessments.

The court found that the applicant did not satisfy the criterion in section 36(2) of the Act, as there was no suggestion that he met the refugee criterion or the complementary protection criterion, nor that he was a member of the same family unit as a person who held a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant was represented in relation to the review, although his representative did not attend the Tribunal hearings.SUMMARY OF CLAIMS AND EVIDENCEProtection Visa Application According to information provided in the protection visa application, the applicant was born in Perak, Malaysia in [Year]. The applicant indicated that he had never married. He described his ethnic group as Malay and his religion as Muslim Shi’a. He gave his occupation as ‘freelance’. The applicant indicated that he had arrived in Australia [in] February 2018. The applicant set out written claims in the application. He stated that he left Malaysia because of his religion. He stated that he was a practising Shi’a Muslim and appeared to indicate that this was different to his family. He stated that there were limited religious freedoms in Malaysia. He stated that with the law in effect the Malaysian governments only allowed Malaysians to follow the Sunni school of thought, effectively forbidding and subjecting to punishment by law promoting any other religion by books or other forms of social media. The applicant stated that he would be punished by law and forced to change his religion. He stated that conversion from Sunni to Shi’a was not acceptable in Malaysia. He stated that he lived in fear if the Malaysian authorities found out that he was a practising Shi’a Muslim. He stated that he did not have the freedom to believe what he loved and chose. He indicated that he had not sought help within Malaysia because he was afraid if anyone found out that he was practising Shi’a they might just report him to the authorities. He stated that every state in Malaysia applied the same rule and he did not wish to relocate. He claimed that, if he returned to Malaysia, he would be locked up and forced to convert his religion. He stated that Malaysia recognised Shi’a Muslim as a diversion from Islam and therefore discrimination against Shi’a was given a legal face. On 6 December 2018, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate found that country information indicated that Shi’a Muslims lived free from discrimination or violence on a day-to-day basis. While some Shi’a Muslims might face interference and difficulty practising their religion, there was no evidence to suggest that this would amount to persecution. The delegate was not satisfied that there was a real chance that the applicant would face serious harm in Malaysia for reason of his religion. Nor was the delegate satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there was a real risk that the applicant would suffer significant harm.Review Application The applicant attached a copy of the delegate’s decision to the review application. The applicant’s representative made a written submission dated 11 March 2024. The submission referred to aspects of the delegate’s decision. It referred to aspects of the legislation. It was submitted that Malaysia, a predominantly Muslim country, practised Sunni Islam as its official religion. While the constitution guaranteed freedom of religion, there had been many instances in which religious minorities, including Shi’a, had faced discrimination and persecution. It was submitted that the Sunni-Shi’a divide, which dated back centuries, had often been a source of tension in Muslim-majority countries, including Malaysia.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant gave extensive evidence at the hearings which I have considered in full. Aspects of his oral evidence are summarised in my consideration, below. By way of background, I note that the applicant gave evidence that he was born in [Town 3], Perak, that he lived there with his family until he finished secondary school, and that he moved to Kuala Lumpur and was studying [Subject 1] there from 2009 to 2013. With regard to employment, he referred to having done a number of different jobs. For instance, he referred to having been [an occupation 2] in [Employer 2] after he finished [Subject 1]. When asked whether he had been working before he came to Australia, the applicant referred to being [an occupation 1] and provided 2 pages of [occupation 1] competency assessments. He indicated that he had worked at [Employer 1] in Nusajaya, Johor, for around 2 years and that he had lived in Johor for 3 years from about 2015 to 2018. He indicated that the employer, [Employer 1], provided somewhere to live. The applicant confirmed that he had been studying in Kuala Lumpur up until 2013. When asked what he was doing in the 2014 to 2015 period, the applicant replied that he was helping his father do some work in the village and that he was in [Town 3]. He confirmed that he was living with his family from 2014 to 2015. With regard to his family composition, he indicated that his father had passed away in November 2022 (and provided a death certificate for his father) and that his mother was still living in [Town 3]. When asked about contact with his mother, he said that it was rare but referred to his sister having borrowed money from a loan shark under his mother’s name and his mother having called him two or three weeks earlier indicating that she needed help. He gave evidence that there were [sisters] and [brothers], including him. He indicated that his older brother lived in Kelantan and that he had last had contact with him two years earlier. He indicated that he was not sure whether his brother worked. He gave evidence also about his sisters, indicating that there were [sisters] in [Town 3] who were married and did not live in his mother’s house. He said they were siblings but not too close. He said they were always fighting. He said his family had a family issue. He indicated that his first sister worked at the [workplace] in [Town 3], while his other sister in [Town 3] did not work. He indicated that his younger sister was in Selangor. He indicated that he was not sure whether she was working. He indicated that when he contacted her 2 years earlier she was still studying. The applicant indicated that he also had a sister in Kelantan who had followed her husband. When asked about whether he had any contact with his sisters, he said only for the loan issue.