1907645 (Refugee) - [2024] ARTA 765

1907645 (REFUGEE) [2024] ARTA 765 (16 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1907645
Tribunal:General Member A Anderson
Date:16 December 2024

Place:Melbourne
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 meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Statement made on 16 December 2024 at 5:18pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from gang – bullied at school and work and beaten – members detained after applicant and mother’s report to police – further beating and threats – continuing harassment of family, and inquiries of whereabouts – key claims and evidence consistent – clear and credible evidence from mother and documentary evidence provided – real chance of serious harm in home area not for refugee criteria reason – complementary protection – no treatment for mental health, need for mother’s support and relocation not reasonable – gangs continue to operate despite police operations – real risk of significant harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB (2013) 210 FCR 505
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 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 national of Malaysia, applied for the visa on 28 December 2018. The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 29 October 2024 and 21 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s mother. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
BACKGROUND
The applicant is a [Age]-year-old…

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 1907645 (Refugee)

Details

AGLC: 1907645 (Refugee) [2024] ARTA 765
Case: [2024] ARTA 765
Decision Date: 16 December 2024

CaseChat Overview and Summary

This case involves an individual from Malaysia who sought a protection visa in Australia, fearing harm from a gang that had previously bullied and assaulted him. The applicant presented his case before the Tribunal, with the assistance of an interpreter, and his mother also provided testimony. The primary dispute revolves around whether the applicant would face a real risk of significant harm if returned to Malaysia, and whether complementary protection applied.

The central legal issues before the court were whether the applicant's fear of harm from the gang constituted a reason listed in section 5J(1)(a) of the relevant Act and whether, in the absence of such a reason, complementary protection was warranted. The court had to assess the credibility of the applicant's claims, the consistency of his evidence, and the likelihood of the gang continuing to pose a threat.

The Tribunal found the applicant's claims credible and consistent, particularly given the corroborating evidence from his mother and documentary evidence of past incidents. The Tribunal noted that despite police operations, the gang continued to operate and posed a real risk of significant harm to the applicant. The court acknowledged that the applicant did not face a risk of harm for a reason listed in the Act, but it concluded that complementary protection was appropriate because the applicant would face a real risk of significant harm if returned to Malaysia. The decision to refuse the visa was therefore remitted back to the delegate for reconsideration in light of these findings.

The court did not make a final order in this summary but indicated that the decision to refuse the visa would need to be reconsidered in light of the Tribunal's findings regarding the real risk of significant harm and the applicability of complementary protection.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant appeared before the Tribunal on 29 October 2024 and 21 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s mother. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.BACKGROUND The applicant is a [Age]-year-old man from Alor Setar, Kedah, in Malaysia. He is of Indian ethnicity and Hindu faith. The applicant’s father resides in Australia. His mother and [siblings] are still living in Alor Setar. The applicant finished his secondary education in Malaysia and worked various jobs thereafter, including as [an occupation]. He arrived in Australia as the holder of a UD-601 Electronic Travel Authority [in] September 2018 and applied for protection on 28 December 2018. Evidence before the Department In his protection visa application, the applicant stated that he had been a victim of bullying since high school and that he was then bullied by old schoolmates at his workplace when he tried to get a job. The applicant stated that on 18 October 2017 he was attacked by a group of Indian men who hit him with a blunt object, badly injuring him and requiring him to go to hospital. The applicant stated that his mother reported this to the police, which resulted in one of the men going to prison. When this man was released in August 2018, he came looking for the applicant to get revenge. The applicant’s car mirror was broken, and his car splashed with red paint. The applicant stated that there was no point in moving within Malaysia because they threatened to find him anywhere. The departmental file indicates that the applicant was not interviewed by a delegate. On 20 March 2019 the delegate made a decision to refuse the visa on the basis that the applicant’s feared harm did not arise for a reason or reasons listed in s 5J(1)(a) of the Act and that, in relation to complementary protection, state protection was available such that the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Malaysia from Australia. The applicant lodged an application for review of that decision on 30 March 2019. Evidence before the Tribunal On 11 March 2024, the Tribunal sent a ‘pre-hearing information’ form to the applicant, informing him that his case was being prepared to be given to a Tribunal Member and inviting the applicant to confirm his contact details, hearing requirements and to provide further information about his claims for protection. On 14 March 2024, the applicant provided the completed pre-hearing information form in response, in which he referred to his claims in his protection visa application and stated that he did not believe the Malaysian authorities would provide any protection to him. At the first hearing, the applicant stated that he was bullied and insulted by Indian boys at high school who said degrading things about his parents and who assaulted him from time to time. After high school, these boys joined a [gang] and continued to cause the applicant problems.

Evidence

Evidence Before The Court

The applicant lodged an application for review of that decision on 30 March 2019. Evidence before the Tribunal On 11 March 2024, the Tribunal sent a ‘pre-hearing information’ form to the applicant, informing him that his case was being prepared to be given to a Tribunal Member and inviting the applicant to confirm his contact details, hearing requirements and to provide further information about his claims for protection. On 14 March 2024, the applicant provided the completed pre-hearing information form in response, in which he referred to his claims in his protection visa application and stated that he did not believe the Malaysian authorities would provide any protection to him. At the first hearing, the applicant stated that he was bullied and insulted by Indian boys at high school who said degrading things about his parents and who assaulted him from time to time. After high school, these boys joined a [gang] and continued to cause the applicant problems. He told the Tribunal that to escape these issues he moved to various parts of Malaysia where he worked and tried to hide from the gangsters but that whenever he went home to live in Alor Setar, thinking that the problems would have died down, he was assaulted. The applicant elaborated on the incident occurring around Diwali in 2017 mentioned in his visa application form, stating that he was collected from work by one of the boys who had bullied him at school and taken to a place known as [Location] where there was a group of men waiting. The applicant stated that he knew these men and gave the Tribunal their names. They were the same people he had had problems with at high school, but they were now gangsters. The men gathered around him and beat him with their fists and a cable and hit him on the head with a beer bottle. The attack lasted a few hours before the men left him there. The applicant stated that he went and hid in an empty house overnight and then went home. His mother helped him to report the attack to the police. The applicant told the Tribunal that the police took photographs of his injuries and then he went to the hospital where he had a scan for his head and was given some medication. He found out later that the police arrested six men who were held in jail for some time. During the time they were locked up, other members of the gang tried to pressure the applicant’s mother to withdraw the charges but she refused. The applicant stated that once the men got out of jail he was beaten again. He was taken to a playground and beaten with a chain. He was able to run away and was assisted by a passerby to get home. He feared that the gangsters would kill him because they were angry that he had reported them to the police and that they had been imprisoned. He decided to leave to come to Australia. The applicant told the Tribunal that since he came to Australia, his mother had told him that she had heard from others in their local area that the gang members had been asking about him and when he would be back. She had also told him that they rode their motorbikes around his family home and parked nearby. The last time they had done this was in July 2024. From this, the applicant knows that they still want to find him and kill him.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.