1919445 (Refugee) - [2024] ARTA 907

1919445 (REFUGEE) [2024] ARTA 907 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1919445
Tribunal:General Member A Hirsch
Date:19 December 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review
General Member A Hirsch
Statement made on 19 December 2024 11:42:59 AM
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from business investors and authorities – partner stole money from business and left applicant with responsibility to repay – applicant convicted and company’s assets impounded – vague claims and no documentary evidence provided – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106(3)
CASES
BMY18 v MHA [2019] FCAFC 189

DFQ17 v MIBP [2019] FCAFC 64
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
MIAC v SZQRB [2013] FCAFC 33
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
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 11 July 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 2 October 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a protection visa because he is not a person in respect of whom Australia has protection obligations.
On 17 July 2019, the applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the delegate’s decision. While this was outside of the prescribed timeframe for an application for review (which would have been 31 March 2019), the notification letter from the Department resembles the error identified in DFQ17 v Minister for Immigration and Border Protection[1] and BMY18 v Minister for Home Affairs.[2] As such, the application for review is valid.
[1] [2019] FCAFC 64 (DFQ17) at [41]–[65] per Perram J.
[2] [2019] FCAFC 189 (BMY18) at [32]–[35] per Reeves, Perram and Charlesworth JJ.
On 14 October 2024, the 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 (Cth) (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.

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.

Keep reading for free

Create a free CaseChat account to read 1919445 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] ARTA 907
Decision Date: 19 December 2024

CaseChat Overview and Summary

The matter under consideration involves a Malaysian national who arrived in Australia in August 2018 and applied for a protection visa. The applicant, whose identity has been established through the provided documents, claims to fear harm if returned to Malaysia due to issues stemming from a failed business partnership and subsequent legal complications. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the delegate's decision to refuse the applicant's protection visa application under the Migration Act.

The central legal issues before the AAT involved whether the applicant met the criteria for a protection visa as outlined in sections 36(2)(a) and 36(2)(aa) of the Migration Act. Specifically, the AAT had to determine if the applicant had a well-founded fear of persecution, or if there were substantial grounds to believe that the applicant would face significant harm upon return to Malaysia.

In addressing these issues, the AAT examined the evidence provided by the applicant, which was limited to his protection visa application form and the delegate's decision record. The applicant's claims detailed a scenario where his business partner had defrauded him, leading to his conviction and the impounding of company assets. Despite these claims, the AAT noted the lack of documentary evidence and the vagueness of the applicant's assertions. The AAT also considered the mandatory considerations set out in Ministerial Direction No. 84, including the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines'.

The AAT concluded that the application could be adequately determined without a hearing, as per section 106(3) of the Administrative Review Tribunal Act 2024 (Cth). The applicant had consented to the decision being made on the papers, and the AAT found that sufficient information existed to assess the application. After careful consideration of the evidence and applicable legal criteria, the AAT affirmed the delegate's decision to refuse the applicant's protection visa application.

The AAT's decision was based on the insufficient evidence provided by the applicant and the lack of substantiation for his claims. Consequently, the Tribunal upheld the delegate's decision, finding that the applicant did not meet the criteria for a protection visa under the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I have before me a copy of the Department’s file. This includes a copy of the applicant’s identity documents, and his protection visa application form, which contains his biographical information and protection claims. Additionally, he provided to the Tribunal a copy of the delegate’s decision record which sets out some of this information. Based on this information I am able to determine the applicant’s identity and receiving country. I am also able to form conclusions about whether he meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Migration Act without seeking further evidence or submissions from the applicant. Given the above, I find that the issues for determination in the proceeding can be adequately determined in the absence of a hearing, as per s 106(3) of the ART Act. As such, on 9 December 2024, the Tribunal wrote back to the applicant stating that ‘As you have consented to the Tribunal deciding the application for review without conducting a hearing, our decision will now be made based on the information and evidence currently before us.’BACKGROUND The applicant claims to be a citizen of Malaysia. He arrived in Australia [in] August 2018. The issues to be considered in this case are as follows:·whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Migration Act if returned to Malaysia and if not;·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act.Evidence before the Department Evidence before the Department consisted only of the applicant’s protection visa application form. In that application, he claims to fear harm on return to Malaysia for the following reasons:·He was in a business partnership running a multi-level marking business. His business partner stole money from the business and left him with the responsibility of repaying hundreds of investors.·The investors lodged a complaint with the authorities and he was convicted. His company assets were impounded and he cannot repay the investors.·He fears harm from the authorities upon return, and also fears harm from those which he owes money to.·He was convicted and is now a ‘wanted person’ and will not get protection from the authorities. The Department did not invite the applicant for an interview. The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application because they did not meet s 36 of the Migration Act. CONSIDERATION OF CLAIMS AND EVIDENCECriteria for 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 he 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.

Evidence

Evidence Before The Court

The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application because they did not meet s 36 of the Migration Act. CONSIDERATION OF CLAIMS AND EVIDENCECriteria for 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 he 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 a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision. If a person is found not to meet the refugee criterion in s 36(2)(a), he or he may nevertheless meet the criteria for the grant of the visa if he or he 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 he 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.REASONS AND FINDINGS

Decision

Reasons for decision

On 6 November 2024, the applicant was provided with a Notice of Hearing, informing them of the hearing on 16 December 2024 and requesting that they complete the Response to Hearing Notice form. On 6 December 2024, the applicant returned the Response to Hearing Notice form, marking the box indicating that he would not participate in the hearing and requested that the Tribunal ‘make a decision on the papers without holding a hearing’. CAN A DECISION BE MADE WITHOUT A HEARING? Section 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that a decision can be made without holding a hearing if ‘(a) the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and (b) either:(i) the decision is wholly in favour of the applicant; or(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The term ‘adequately determined’ as per s 106(3)(c) is not defined in the ART Act. The principles of statutory interpretation require that I consider the text, context and purpose of a legislative provision when determining its meaning.[3] The ordinary meaning of ‘adequate’ is defined in the Macquarie Dictionary as ‘equal to the requirement or occasion; fully sufficient, suitable or fit’ and in a legal context as ‘reasonably sufficient for starting legal action’ in the sense of ‘adequate grounds’. Using this literal definition, it is clear that an application can be ‘adequately determined’ if there is sufficient information available to the Tribunal in order for it to determine the issues in the application. [3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ). As per EIZ20 v Child Support Registrar, it is for the Tribunal to decide whether the application can be ‘adequately determined’ without holding a hearing.[4] In properly carrying out its duties, ‘the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation seek further information or hold a hearing.’[5][4] EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (20 July 2023)[5] Ibid [60] [emphasis added]. The Tribunal has the applicant’s protection visa application, in which he details his claims for protection. It also has the delegate’s decision record. The applicant has also provided the Tribunal with information in the Pre-Hearing Information form. From these documents, I have decided that there is sufficient information in order to adequately determine the issues in this application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.