1912353 (REFUGEE) - [2024] ARTA 171

1912353 (REFUGEE) [2024] ARTA 171 (30 OCTOBER 2024)

DECISION AND

REASONS FOR DECISION

Respondent: Minister for Home Affairs

Tribunal Number: 1912353
Tribunal:General Member R Timms
Date:30 October 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 30 October 2024 at 2:12 pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – written claims of harassment and threats by people who lost money in fraudulent multilevel marketing business – claims at hearing as election campaigner for political party – harassment by supporters of new government after election loss, and by fellow-supporters who had made campaign donations – no direct threats – employment discrimination, age and serious health condition and treatment – working in Australia to reduce debt – passage of time and no recent approaches by creditors to wife – written claims changed by person who assisted with application – responsibility to specify all particulars and provide sufficient evidence – likely or possible harm not for refugee or complementary criteria reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
EZC18 v MHA [2019] FCA 2143
Guo Wei Rong v MIEA (1996) 64 FCR 151; (1996) 40 ALD 445

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a national of Malaysia, applied for the visa on 14 September 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.

3. The applicant appeared before the Tribunal on 30 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

Evidence before the Department

4. The Tribunal has before it Departmental file [Reference], which contains a number of file items including the following:

· Protection visa application form.
· Supporting documents.

Evidence before the Tribunal

5. The Tribunal also has before it the online Tribunal file (Tribunal online reference # 20190518-63793) which contains a number of file items including the following:

·     Review application form.
·     The delegate’s decision.
·     The hearing recording.

BACKGROUND

The applicant’s personal background

6. The applicant is a [Age]-year-old male of Malay ethnicity and Muslim religion who is married with [children], with his wife and children all living in Kedah in Malaysia. His eldest child is aged [Age] and his youngest child is aged [Age] years old.

7. The applicant gave evidence that he was born in the Malaysian state of Kedah, as…

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 1912353 (REFUGEE)

Details

AGLC: 1912353 (REFUGEE) [2024] ARTA 171
Case: [2024] ARTA 171
Decision Date: 30 October 2024

CaseChat Overview and Summary

The case involved an individual from Malaysia who had applied for a protection visa on the grounds of potential harm from creditors of a fraudulent multilevel marketing business in which they had been involved, as well as from supporters of a political party they had campaigned for. The application was reviewed, and the decision to deny the visa was affirmed by the court. The applicant claimed that they had faced harassment and threats from those who had lost money in the fraudulent business, as well as from supporters of the new government following the political party's election loss, and from fellow supporters who had made campaign donations. However, the applicant did not allege any direct threats. The applicant also claimed employment discrimination and discrimination based on age and a serious health condition and treatment, and stated that they were working in Australia to reduce their debt. The applicant's written claims were changed by a person who assisted with the application, which led to concerns about the responsibility to specify all particulars and provide sufficient evidence.
The court considered whether the applicant's claims met the criteria for a protection visa under the Refugee Convention and the Migration Act. The court found that the applicant's claims were not for refugee or complementary criteria reasons, as the alleged harm was not likely or possible to occur. The court also noted that the passage of time and the lack of recent approaches by creditors to the applicant's wife suggested that the risk of harm had diminished. The court was satisfied that the decision to deny the visa was correct and affirmed the decision. The applicant's claims did not meet the necessary criteria for a protection visa, and the court found that the decision-maker had properly considered the evidence and made a decision that was in accordance with the law.

Orders