1935294 (Refugee) - [2025] ARTA 1265

1935294 (REFUGEE) [2025] ARTA 1265 (14 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1935294
Tribunal:General Member S Fitzsimons
Date:14 April 2025

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:
·s36(2)(a) of the Migration Act.

Statement made on 14 April 2025 at 4:52pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lender – responsibility for debt after father’s death – financial support for mother and siblings – new claims of fear of harm from police because of Indian ethnicity and as former gang member – harassment, bribery, detention and beatings – police inquiries to applicant’s mother after applicant’s departure – consistent, detailed and persuasive evidence – police records unobtainable – country information – disproportionate imprisonment and harm to Indian Malaysians by police – profile as former gang member – effective protection measures not available – fear of economic harm – work history and resilience, workplace injury and treatment – fear of harm or forced recruitment by gang – gang well-organised and connected – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Calado v MIMA (1998) 81 FCR 450
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 Immigration and Multicultural Affairs on 5 December 2019 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 13 December 2019. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Tribunal can continue this review that commenced in the AAT and consider and determine the matter accordingly.[1]
[1] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
The applicant who claims to be a national of Malaysia, applied for the visa on 28 September 2019. The delegate refused to grant the visa on the basis that he was neither a refugee nor owed complementary protection.
The applicant appeared before the Tribunal on 20 December 2024 and 31 March 2025 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was not represented.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for…

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 1935294 (Refugee)

Details

AGLC: 1935294 (Refugee) [2025] ARTA 1265
Case: [2025] ARTA 1265
Decision Date: 14 April 2025

CaseChat Overview and Summary

The case pertains to a Malaysian citizen who applied for a protection visa in Australia, claiming he faced persecution in Malaysia due to his Indian ethnicity, past association with a gang, and economic hardships. The Tribunal was tasked with determining whether the applicant qualified as a refugee under the Migration Act 1958 or was entitled to complementary protection. The primary legal issues revolved around the applicant's claims of fear of harm from the police because of his ethnicity, his past association with a gang, and economic harm. The Tribunal needed to assess the credibility of these claims and determine if the applicant had a well-founded fear of persecution in Malaysia, which would make him eligible for a protection visa.

The Tribunal found that the applicant's claims were consistent, detailed, and persuasive. It noted that police records were unobtainable, which complicated the verification process. However, the Tribunal relied on country information and news reports indicating disproportionate imprisonment and harm to Indian Malaysians by the police, as well as the applicant's profile as a former gang member. The Tribunal concluded that the applicant had a well-founded fear of persecution if he were to return to Malaysia, as effective protection measures were not available to him. Additionally, the Tribunal found that the economic hardship the applicant faced constituted significant harm under the Act. Therefore, the decision to refuse the visa application was set aside, and the matter was remitted for reconsideration, finding that the applicant satisfied the criteria for a protection visa as a refugee.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal has before it a copy of the applicant’s Malaysian passport which was included with his protection visa application. The delegate was satisfied of the applicant’s identity. At the first hearing the applicant told me he is a Malaysian citizen which I accept. The applicant also told me that he does not have a right to enter and/or reside in a third country nor is he a citizen of any country other than Malaysia which I also accept. I find that he is a Malaysian citizen and I have assessed his protection claims with Malaysia as the receiving country. I am satisfied that s36(3) of the Act does not apply. The applicant’s personal background The applicant was born on [Date] in Wilayah Persekutuan, in the Federal State of Kuala Lumpur. His father was born in Malaysia and passed away in 2011. His mother was also born in Malaysia and she currently lives in Selangor in Malaysia. The applicant has one older brother and one younger sister. The applicant is single. The applicant arrived in Australia [in] July 2019 and has been here ever since. The Tribunal accepts each of the above matters to be true. The applicant’s claims for protection before the delegate The applicant’s protection claims were contained in his visa application form.[2] The only other document he provided to the delegate was his Malaysian passport. In his protection visa the applicant claimed that his family ran a [store] that got into debt with a money lender and when his father had died the debt became his responsibility because his brother was “insane” and his sister was at that time too young to work. He claimed he could not get work in Malaysia and so came to Australia to earn money to repay the debt. He claimed he did not experience harm in Malaysia, that he did not fear harm if he returned to Malaysia. [2] Protection visa application form, Department File No: [Reference], document ID: 6736073. The applicant was not interviewed by the delegate. The delegate refused the applicant’s visa application on the basis that he was not a refugee as he was not claiming harm for a reason in s5J(1)(a) nor was he owed complementary protection on the basis of economic hardship because country information indicated that Malaysia’s economic outlook was positive and that any economic harm suffered by the applicant did not constitute significant harm. Written Evidence before the Tribunal In support of his review application, in addition to the delegate’s decision record, the applicant has provided to the Tribunal:oAn email from the [Hospital] to the applicant dated 29 April[3]oA death certificate of his father dated [February] 2011[4] oWhatsapp screenshots of message conversations between the applicant and his Malaysian lawyer that are dated from 1 July 2024 to 22 January 2025[5]oThe business card of his Malaysian lawyeroNews reports[6] that he claims is evidence of police brutality and discrimination towards Malaysian citizens of Indian ethnicityoA news report published by Malaysian news agency Bernama, that he claims is a report of the shooting deaths of his friends by the police and a photograph of the applicant with a group of young men, one of which he claims was shot dead by police[7][3] On the Tribunal file the document ID is: 12563192.[4] On the Tribunal file the document ID is: 14141102.[5] On the Tribunal file the screenshots were sent on 22 January 2025 attached to three separate emails and the document ID for each: 14482727, 14483710 and 14483745.[6] On the Tribunal file the document ID is: 14982772.[7] On the Tribunal file the document ID is: 15082636.Oral Evidence and Findings

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issues to be determined in this case are whether the applicant is either a refugee or entitled to complementary protection as set out in s36(2) of the Act. The applicant fears harm from the police because of his ethnicity, harm from a gang as a former member of that gang, and economic harm. For the following reasons, the Tribunal has concluded that the decision under review should be set aside and remitted on the basis that the applicant is a refugee and therefore meets s36(2)(a) of the Act.The applicant’s identity and country of nationality The Tribunal has before it a copy of the applicant’s Malaysian passport which was included with his protection visa application. The delegate was satisfied of the applicant’s identity. At the first hearing the applicant told me he is a Malaysian citizen which I accept. The applicant also told me that he does not have a right to enter and/or reside in a third country nor is he a citizen of any country other than Malaysia which I also accept. I find that he is a Malaysian citizen and I have assessed his protection claims with Malaysia as the receiving country. I am satisfied that s36(3) of the Act does not apply. The applicant’s personal background The applicant was born on [Date] in Wilayah Persekutuan, in the Federal State of Kuala Lumpur. His father was born in Malaysia and passed away in 2011. His mother was also born in Malaysia and she currently lives in Selangor in Malaysia. The applicant has one older brother and one younger sister. The applicant is single. The applicant arrived in Australia [in] July 2019 and has been here ever since. The Tribunal accepts each of the above matters to be true. The applicant’s claims for protection before the delegate The applicant’s protection claims were contained in his visa application form.[2] The only other document he provided to the delegate was his Malaysian passport. In his protection visa the applicant claimed that his family ran a [store] that got into debt with a money lender and when his father had died the debt became his responsibility because his brother was “insane” and his sister was at that time too young to work. He claimed he could not get work in Malaysia and so came to Australia to earn money to repay the debt. He claimed he did not experience harm in Malaysia, that he did not fear harm if he returned to Malaysia. [2] Protection visa application form, Department File No: [Reference], document ID: 6736073. The applicant was not interviewed by the delegate.

Decision

Reasons for decision

On the material before me, I am satisfied that the applicant has a well-founded fear of persecution for reasons of his ethnicity if he returns to Malaysia now or in the reasonably foreseeable future. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a). DECISION The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s36(2)(a) of the Migration Act.Dates of hearing: 20 December 2024 and 31 March 2025Representative of the Applicant: N/AATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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