2007451 (Refugee) - [2024] AATA 4345

2007451 (Refugee) [2024] AATA 4345 (26 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chang Hong Liu
CASE NUMBER:  2007451
COUNTRY OF REFERENCE:                   Singapore
MEMBER:Donald Gordon
DATE:26 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 August 2024 at 3:37pm
CATCHWORDS
REFUGEE – protection visa – Singapore – fear of harm from loan sharks – borrowed to pay gambling debts – harassed, threatened, assaulted and falsely imprisoned – passage of time, settled life in Australia and employment and living conditions in home country – no attempt by loan sharks to contact applicant’s family – country information – police and judicial protection and government’s employment and social security programs – risk faced by population generally – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B)(c), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
BBK15 v MIBP [2016] FCA 680
Chan Yee Kin v MIEA (1989) 169 CLR 379
CSV15 v MIBP [2018] FCA 699
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMIA v VFAY [2003] FCAFC 191
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 April 2020 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 citizen of Singapore, applied for the visa on 24 December 2015.
The delegate refused to grant the visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant has a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant is not a person 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
The applicant appeared before the Tribunal on 21 August 2024 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in…

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 2007451 (Refugee)

Details

AGLC: 2007451 (Refugee) [2024] AATA 4345
Case: [2024] AATA 4345
Decision Date: 26 August 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Singapore. The applicant claimed to fear harm from loan sharks due to outstanding gambling debts, alleging past harassment, threats, assault, and false imprisonment. The applicant also asserted that Singaporean authorities would not intervene in moneylending disputes and that relocation within Singapore was not a viable option to avoid the loan sharks. The Tribunal was required to determine whether Australia owed protection obligations to the applicant under the *Migration Act 1958* (Cth), specifically by reference to the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa).

The Tribunal considered the applicant's claims in light of the relevant legislative provisions and country information. It noted that if a person does not meet the refugee criterion, they may still qualify for a visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal to their country of nationality, they face a real risk of suffering significant harm. The Tribunal also took into account Ministerial Direction No. 84, the 'Refugee Law Guidelines', 'Complementary Protection Guidelines', and country information assessments.

The Tribunal found that the applicant was a citizen of Singapore and had no right to reside elsewhere, thus s 36(3) of the Act was not applicable. Crucially, the Tribunal concluded that the applicant did not satisfy the criteria under s 36(2) of the Act, including the complementary protection criterion. There was no suggestion that the applicant qualified as a family member of someone who met the protection criteria. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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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 EVIDENCEISSUE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of Singapore, which is also their receiving country for the purpose of their protection claims and assessments. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Singapore, and therefore s 36(3) of the Act is not applicable.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 24 December 2015. The applicant, in their protection visa application form, sets out their reasons for claiming protection, which are summarised as follows:a.The applicant is seeking protection in Australia, so they do not have to return to Singapore. b.Due to gambling debts, they borrowed money from loan sharks and their interest rates were too high to be able to make repayments. He stated “I left Singapore because I could not afford to pay back shark loans. In Singapore I was addicted to gambling and I borrowed shark loans.”c.They were subjected to false imprisonment and violently assaulted. d.They fear if they return that the loan sharks will harm them.e.The authorities will not get involved in moneylending. f.They cannot relocate within Singapore to avoid the loan sharks.HEARING BEFORE THE TRIBUNAL The applicant appeared before the Tribunal to give evidence and make submissions in support of their claims for protection. The applicant gave sworn evidence as follows. The applicant stated he was born in Singapore and is presently in his late [Decade]. Both his mother and father have passed away. He has [siblings]. Notably a sister lives in Australia. He went up to year [grade] schooling. He is not married and does not have any children. Prior to coming to Australia, he was [an occupation 1] for 6 years in Singapore.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

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.CONSIDERATION OF CLAIMS AND EVIDENCEISSUE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of Singapore, which is also their receiving country for the purpose of their protection claims and assessments. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Singapore, and therefore s 36(3) of the Act is not applicable.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 24 December 2015. The applicant, in their protection visa application form, sets out their reasons for claiming protection, which are summarised as follows:a.The applicant is seeking protection in Australia, so they do not have to return to Singapore. b.Due to gambling debts, they borrowed money from loan sharks and their interest rates were too high to be able to make repayments. He stated “I left Singapore because I could not afford to pay back shark loans. In Singapore I was addicted to gambling and I borrowed shark loans.”c.They were subjected to false imprisonment and violently assaulted. d.They fear if they return that the loan sharks will harm them.e.The authorities will not get involved in moneylending. f.They cannot relocate within Singapore to avoid the loan sharks.HEARING BEFORE THE TRIBUNAL