2008974 (Refugee) - [2024] ARTA 707

2008974 (REFUGEE) [2024] ARTA 707 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2008974
Tribunal:General Member R McLaughlin
Date:02 December 2024

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

Statement made on 02 December 2024 at 12:09pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political and socio-economic conditions – unstable life, limited education and employment opportunities – no past harm or claim of fear of future harm – moderate and consistent claims and evidence – work experience and skills – working in Australia to support family – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BLS18 v MICMA [2024] FedCFamC2G 462
DQU16 v MHA [2021] HCA 10
MIAC v SZQRB (2013) 210 FCR 505
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 28 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
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.
The applicant, who claims to be a national of Malaysia, applied for the visa on 27 January 2020. The delegate refused to grant the visa on the basis that ‘the applicant’s claims [did] not relate to any of the reasons in s 5J(1)(a) and there [was] no other information before [the delegate] to suggest that they will be subject to harm on their return to Malaysia for one or more of these reasons’. In respect of complementary protection, the delegate found that the applicant’s claimed fear of economic hardship was ‘not significant harm within the meaning of s 36(2A) of the Act’.
The Tribunal accepts that the reference country for this applicant is Malaysia. Based on the material before it, the Tribunal accepts that the applicant is who she says she is, and that she is a national of Malaysia. The Tribunal also accepts that the applicant has no right to enter and reside, whether temporarily or permanently, in a third country.
The applicant appeared before the Tribunal on 28 November 2024 to give evidence and present arguments. 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.

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Details

Case: [2024] ARTA 707
Decision Date: 2 December 2024

CaseChat Overview and Summary

The case of 2008974 involves a Malay woman from Sabah, Malaysia, who applied for a protection visa on the basis of political instability, socio-economic conditions, and limited educational and employment opportunities in Malaysia. She testified before the Tribunal with the assistance of an interpreter in Malay and English, presenting her claims and evidence. The Tribunal was tasked with determining whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) and the associated regulations, specifically whether she had a well-founded fear of persecution or faced a real risk of significant harm if returned to Malaysia.

The primary legal issue before the Tribunal was whether the applicant's claims and evidence sufficiently demonstrated a real chance of persecution or significant harm in Malaysia. The Tribunal considered the criteria for a protection visa, including the definition of a refugee under the Act, and the concept of a well-founded fear of persecution. The Tribunal had to assess the credibility and consistency of the applicant’s evidence, and whether it established a real chance of persecution or significant harm for the reasons claimed. The Tribunal also examined the country information to determine if the conditions in Malaysia supported the applicant’s claims.

After reviewing the evidence and country information, the Tribunal concluded that the applicant's claims were moderate and consistent but did not establish a well-founded fear of persecution or a real risk of significant harm. The Tribunal found the applicant generally credible, but her claims were insufficient to meet the statutory criteria. The Tribunal noted that while the applicant had concerns about political instability and socio-economic conditions in Malaysia, she had not experienced past harm or provided compelling evidence of a foreseeable risk of future harm that met the statutory requirements. The Tribunal affirmed the decision of the Department to refuse the protection visa.

The Tribunal ordered that the decision under review be affirmed, and the protection visa application was dismissed. The applicant was advised of her right to seek review of the Tribunal's decision in the Federal Circuit and Family Court of Australia.

Orders

Orders of the court

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Background

Background to the litigation

The applicant appeared before the Tribunal on 28 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.BACKGROUND The applicant is a Malay woman from Sabah in Malaysia. Her parents and four of her siblings still live in Malaysia. One sibling (a sister) is currently working in Australia. The applicant is not married and has no children. She has contact with her family in Malaysia weekly by phone. The applicant claims to have had no formal education in that she did not attend school and was taught at home by her mother. Other siblings did attend school. The applicant confirmed that she reads and writes Malay and English and has an adequate command of mathematics for work an daily life. Prior to coming to Australia, she was a [products] salesperson; since arriving in Australia, she has worked in [work task 1] and now works in [work task 2].Evidence before the Department The evidence before the Department at the time of its decision was comprised of the applicant’s protection visa application and relevant identification details. The applicant did not respond to an invitation to provide further details as to her claims prior to the Departmental decision. The claim as presented to the Department was as follows:· The applicant left Malaysia because of ‘financial [cruelty], unstable life, low education’, and because ‘political issue[s] seems never ending problem’.· The applicant has no trust in the political authorities in Malaysia.· The applicant stated that she had never experienced any harm in Malaysia.· The applicant sated that she could not move to another location in Malaysia as the ‘unresolved problem… will be the same situation’.· If returned to Malaysia, the applicant thinks they will experience ‘low quality of life’; however, she does not think that she will be harmed.Evidence before the Tribunal The evidence before the Tribunal was as follows:· The protection visa application (January 2020) and associated identification material.· The Department’s decision (May 2020).· A short statement contained in the applicant’s response to the Tribunal in the ‘pre-hearing form’ (May 2024).· The applicant’s evidence provided at the hearing.Evidence presented prior to the hearing The evidence provided by the applicant in the pre-hearing information form (May 2020) was a short repetition of elements of the applicant’s protection visa claim. The key elements of this May 2024 statement were as follows:· The applicant’s life in Malaysia ‘is incredibly difficult’.· This is because of ‘struggling to make ends meet, living in poverty with no stability’.· Due to ‘limited educational opportunities’, she faces ‘significant barriers to improving’ her situation.· The ‘persistent political unrest in Malaysia creates a climate of fear and uncertainty, making it unsafe for [her] to return’.Evidence presented at the hearing

Evidence

Evidence Before The Court

The evidence provided at the hearing was also centred on these same claims. The key integers of claim that arose at the hearing were as follows (noting that the details of these claims are further addressed below):· The applicant needs a visa as she wants to stay in Australia and work, not go back to Malaysia.· She does not like the politics in Malaysia as it is not stable, and the economy is still not good.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. 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

Decision

Reasons for decision

The issue in this case is whether the applicant faces a real chance that she will suffer persecution for a refugee criteria reason, or indeed for any other reason, if returned to Malaysia, now or into the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In assessing the applicant’s evidence, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant, or to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. In this regard, it is essential to recall that – in relation to the claimed reasons for or nature of persecution - that ‘if a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).’[1][1] From the ART ‘Optional Standard Paragraphs’ Guidelines document. Further, as noted immediately above and as relevant to the applicant’s case, the associated issue of what constitutes ‘serious harm’ is a key element of assessment, noting that:‘For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.’[2][2] Ibid. In this case, the credibility of the applicant’s evidence is not the key assessment issue. Indeed, the Tribunal found the applicant to be generally credible in that her evidence at the hearing was (1) generally consistent with her claims as previously explained in her protection visa application and her additional 2024 pre-hearing statement; (2) was relatively consistent through out the course of the hearing; and (3) was moderately presented with no obvious material implausibilies or hyperbole.

Ratio Decidendi

Legal Principle Established

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