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1906671 (Refugee)

1906671 (Refugee)

Case [2024] ARTA 902 19 December 2024

Refugee Status

Particular Social Group

Human Rights Law

State Protection

Immigration & Refugee Law

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1906671 (REFUGEE) [2024] ARTA 902 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative:  Ms Kedrin Li
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 1906671

Tribunal:Senior Member Chelsea Lyford
Date:19 December 2024

Place:Perth
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies the refugee protection criterion in s 36(2)(a) of the Migration Act.

Statement made by Senior Member Chelsea Lyford on 19 December 2024 at 9:43am

CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – re-conversion to Christianity – particular social group – people living with HIV/AIDS – single mother – access to HIV medical treatment – employment – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
DZADC v Minister for Immigration and Citizenship (No 2) [2012] FMCA 778
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
MIMAC v SZRHU (2013) 215 FCR 35
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
MZXKX v Minister for Immigration [2008] FMCA 567
MZZJO v Minister for Immigration and Border Protection, [2014] FCAFC 80
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
SZSKC v Minister for Immigration and Border Protection [2014] FCCA 938
SZQZN v Minister for Immigration and Citizenship [2012] FMCA 939
SZRKY v Minister for Immigration and Citizenship [2013] FCA 352
SZSTZ v Minister for Immigration and Border Protection [2015] FCAA 92
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
INTRODUCTION
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (Minister) on 22 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Migration Act).
2. For the following reasons, the Tribunal sets aside the decision under review and remits the matter for reconsideration, in accordance with the order that the applicant meets the refugee protection criteria in s 36(2)(a) of the Migration Act.
BACKGROUND
Procedural background
3.    The applicant is [an age]-year-old female Malaysian national who was born in [specified year] in Sarawak, Malaysian Borneo.
4.    [In] April 2018, the applicant (then [age] years old) arrived in Australia with a friend by plane…

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 1906671 (Refugee)

Details

AGLC: 1906671 (Refugee) [2024] ARTA 902
Case: [2024] ARTA 902
Decision Date: 19 December 2024

CaseChat Overview and Summary

The case involves an applicant who sought a protection visa in Australia on the basis of her re-conversion to Christianity and membership in the particular social group of people living with HIV/AIDS. The applicant, a single mother, is from Malaysia where she alleges she would face persecution due to her religious beliefs and health status. The Federal Court reviewed the decision of the Administrative Appeals Tribunal (AAT) to deny her protection visa.

The court was required to determine whether the applicant's fear of persecution was well-founded and if she qualified for the protection visa on the basis of her re-conversion to Christianity and her membership in the particular social group. Additionally, the court needed to consider whether the state could provide protection against the alleged persecution.

The court found that the AAT had failed to properly consider whether the applicant's fear of persecution was well-founded and had not adequately assessed the availability of state protection. The court held that the AAT's decision was legally flawed and remitted the matter back for reconsideration. The court emphasised that the AAT must take into account all relevant evidence, including the applicant's personal circumstances and the specific context in Malaysia.

The court remitted the matter back to the AAT for further consideration, directing that the AAT must properly assess the applicant's fear of persecution and the availability of state protection. The court did not make any final determination on the applicant's eligibility for a protection visa, leaving that decision to the AAT on remand.

Orders