1933043 (Refugee) - [2024] ARTA 949

1933043 (REFUGEE) [2024] ARTA 949 (4 DECEMBER 2024)

DECISION AND

REASONS FOR DECISION

Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1933043

Tribunal:General Member R Timms
Date:4 December 2024

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

Statement made on 4 December 2024 at 12:46 pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – political opinion – organising protests – economic conditions – corruption – fear of self-harm – conviction – detention – escaping a mental institution – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

EZC18 v MHA [2019] FCA 2143
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (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 20 November 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 19 March 2019. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.

3. The applicant lodged his review application on 20 November 2019, and he then appeared before the Tribunal on 13 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. 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.

Evidence before the Department

5. The Tribunal has before it Departmental file [number], which contains a number of file items including but not limited to the following:

·     Protection visa application form.
·     Passport copy.
·     The delegate’s decision.

Evidence before the Tribunal

6. The Tribunal also has before it the online Tribunal file (Tribunal online reference number 20191120-88952) which contains a number of file items including but not limited to the following:

· Review application form.
· The hearing recording.

BACKGROUND

The applicant’s personal background

7. The applicant is [an age]-year-old male of Malaysian-Chinese ethnicity and…

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 1933043 (Refugee)

Details

AGLC: 1933043 (Refugee) [2024] ARTA 949
Case: [2024] ARTA 949
Decision Date: 4 December 2024

CaseChat Overview and Summary

The case involved an applicant from Malaysia seeking a protection visa in Australia. The applicant claimed they faced persecution due to their political opinion, stemming from their involvement in organising protests against the government's economic policies, corruption, and their own detention and escape from a mental institution. The court was required to determine whether the applicant met the criteria for a protection visa under Australian law.

The primary legal issue was whether the applicant's experiences in Malaysia constituted persecution due to a protected ground, such as political opinion. The court also considered the applicant's fear of self-harm and the impact of their detention and escape on their eligibility for a protection visa. The court had to assess the credibility of the applicant's claims and the evidence provided, as well as the likelihood of the applicant facing persecution if returned to Malaysia.

The court found that the applicant's claims were not credible, particularly regarding their political activities and the reasons for their detention. The court determined that the applicant's fear of self-harm was not sufficiently linked to a protected ground, and their escape from a mental institution did not establish a well-founded fear of persecution. The court held that the applicant did not meet the criteria for a protection visa and affirmed the decision under review, denying the application. The court's reasoning was based on the lack of credible evidence supporting the applicant's claims and the absence of a well-founded fear of persecution on a protected ground.

Orders