1928928 (Refugee) - [2024] ARTA 789

1928928 (REFUGEE) [2024] ARTA 789 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1928928
Tribunal:General Member P Gardner
Date:02 December 2024

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

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – coerced into sexual relationship – vague claims and no supporting evidence – delay in applying for protection – applied after significant and unexplained period as unlawful non-citizen – consent to decision without hearing – responsibility to provide sufficient evidence to establish claims – 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
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(c)
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Zhang v RRT [1997] FCA 423
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 02 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused to grant the visa on the basis that they were not satisfied the applicant is owed protection by Australia.
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 (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.
BACKGROUND
The review applicant is a national of Malaysia, born in [Year]. He initially arrived in Australia [in] February 2014 on an electronic travel authority, before applying and being granted a tourist visa on 20 May 2014 and then a student visa on 21 August 2014. Between [February] 2015 and [March] 2016, he travelled to Singapore on 3 occasions, ultimately returning on [April] 2016. His student visa ceased on 08 October 2016, and he applied for a protection visa on 13 June 2019 (PV Application). He applied to review the delegate’s decision on 13 October 2019 (Review Application).
The review applicant appointed a migration agent as his authorised representative on 17 April 2024. His authorised representative has made written submissions to the Tribunal on two occasions. Firstly, on 17…

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 1928928 (Refugee)

Details

AGLC: 1928928 (Refugee) [2024] ARTA 789
Case: [2024] ARTA 789
Decision Date: 2 December 2024

CaseChat Overview and Summary

The applicant, a non-citizen from Malaysia, applied for a protection visa in Australia, seeking asylum based on claims of persecution due to being coerced into a sexual relationship and being part of a particular social group. The case was reviewed by the Tribunal, which decided to make its decision without a hearing under section 106 of the Administrative Review Tribunal Act 2024 (Cth). The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth), specifically regarding the well-founded fear of persecution and the risk of significant harm upon return to Malaysia.

The Tribunal found that the applicant's claims were vague and lacked sufficient supporting evidence. The applicant's claims regarding persecution for being coerced into a sexual relationship and being part of a particular social group were not substantiated by the evidence provided. Additionally, the Tribunal noted a significant and unexplained delay in the applicant's application for a protection visa, which was submitted after the applicant had been an unlawful non-citizen for some time. The Tribunal also considered the country information provided by the Department of Foreign Affairs and Trade, which did not support the applicant's claims of persecution. Based on these findings, the Tribunal concluded that the applicant did not meet the criteria for a protection visa under sections 36(2)(a) and 36(2)(aa) of the Act.

Consequently, the Tribunal affirmed the decision under review, denying the application for a protection visa. The applicant's request for a hearing was denied as it appeared that the issues could be adequately determined based on the documents and submissions provided. The Tribunal emphasized the responsibility of the applicant to provide sufficient evidence to establish their claims, which was not met in this case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In addition to the Department’s file, I have considered:·The Review Application form; and·The submissions provided by the review applicant’s representative on 17 April 2024 and 20 November 2024.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 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 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 (the refugee criterion). 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 she may nevertheless meet the criteria for the grant of the visa if he or she 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 she 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

For the reasons that follow, I have decided to make a decision without a hearing.Decision without a hearing The Tribunal has power to decide some applications without a hearing. The relevant power in this case is set out in s 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), which relevantly provides:(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies....(3) This subsection applies 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 Department is a non-participating party and the review applicant has expressly requested that the Tribunal make a decision without holding a hearing. There is no ambiguity in his request. To meet the condition in s 106(3)(c), I must also be satisfied that it appears that the issues for determination in the proceedings can be adequately determined in the absence of a hearing. Those issues are:·The review applicant’s identity, nationality and receiving country;·whether the review 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 Act if returned to their receiving country and if not;·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act; and·whether the review applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. In this case, it appears to me that those issues can be adequately determined without a hearing. I have been provided with the Department’s file, which includes identity documents, the PV Application, biographical information about the review applicant, details of his protection claims and the decision record. In conjunction with the written submissions provided by his representative on the two occasions referred to above, I can determine the review applicant’s identity and his receiving country. I can also determine whether he meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Act. In reaching this conclusion, I have considered the opportunities given to the review applicant to provide additional evidence to support his protection claims in his PV Application. This includes in the Review Application itself, and through written submissions made by his representative on two occasions. I note that the review applicant initially requested an oral hearing, before making the request to have the application determined on the papers. Evidence before the Department

Ratio Decidendi

Legal Principle Established

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