1902769 (Refugee) - [2024] AATA 3823

1902769 (Refugee) [2024] AATA 3823 (15 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1902769
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Jennifer Ermert
DATE:15 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 August 2024 at 10:43am

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from gangster partner – demands for money for gambling, and assault – unplanned pregnancy and marriage under pressure from family – credibility – no recent contact by husband with applicant or family – relocation possible and reasonable – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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 (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 30 January 2019 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 30 July 2018. The delegate refused to grant the visa on the basis that the applicant does not meet s 36(2) of the Act because she is not a person in respect of whom Australia has protection obligations, nor is she 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 31 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay 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 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.
Section 36(2)(a) provides that a criterion for…

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 1902769 (Refugee)

Details

AGLC: 1902769 (Refugee) [2024] AATA 3823
Case: [2024] AATA 3823
Decision Date: 15 August 2024

CaseChat Overview and Summary

The applicant 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 she feared harm from her former husband, a member of a criminal gang, who allegedly made demands for money for gambling and had assaulted her. She also stated that she had an unplanned pregnancy and was married under pressure from her family.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically for the reason of membership of a particular social group, namely women in a relationship with a member of a criminal gang, or for the reason of political opinion, or for the reason of race, religion or nationality. The court was required to assess the applicant's credibility and determine if her fear of harm was objectively reasonable, considering the evidence presented.

The court affirmed the delegate's decision, finding that the applicant had not established a well-founded fear of persecution. The court noted that there had been no recent contact between the applicant and her former husband or his family, and that the applicant had the capacity to relocate within Malaysia to a place where she would not be at risk of harm. The court considered the applicant's claims of pressure to marry and her unplanned pregnancy, but concluded that these circumstances did not, in themselves, establish a Convention reason for persecution. The court applied the principles of assessing credibility and the objective reasonableness of a fear of harm in the context of protection visa applications.

Orders