2009349 (Refugee) - [2024] ARTA 808

2009349 (REFUGEE) [2024] ARTA 808 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2009349

Tribunal:General Member L Hill
Date:10 December 2024

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

GENERAL MEMBER L HILL
STATEMENT MADE ON 10 DECEMBER 2024 AT 17:20PM AEST

CATCHWORDS
REFUGEE – protection visa – Malaysia – threats from former customers – forced payment of damages – employment – fear of killing – physical assault – internal relocation – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
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 19 May 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 national of Malaysia, applied for the visa on 18 December 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
On 4 June 2020, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision. On 14 October 2024, the 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.
On 7 November 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 6 December 2024. Amongst other things, the hearing letter advised the applicant to contact the Tribunal as soon as possible if she was not available to attend or believed that she would experience any difficulties in participating in the hearing as arranged. The applicant was also asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal.
On 28 November 2024, the applicant emailed to 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 808
Decision Date: 10 December 2024

CaseChat Overview and Summary

The case involves an applicant who applied for a protection visa under Australian law, which was subsequently refused by the Minister’s delegate. The applicant, who originates from Malaysia, claimed that she faced threats from former customers, forced payments of damages, employment issues, and fears of physical assault and killing. The applicant also argued that she could not relocate internally within Malaysia due to a lack of state protection. The matter was brought before the Administrative Appeals Tribunal (AAT) for review of the decision to deny the visa.

The legal issues before the AAT were primarily whether the applicant met the criteria for a protection visa as stipulated in the relevant sections of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to determine whether the applicant qualified as a refugee under section 36(2)(a) of the Act, or if there were substantial grounds for believing she would face significant harm if returned to Malaysia under section 36(2)(aa).

The AAT found that the applicant did not meet the criteria for a protection visa. The Tribunal concluded that the applicant's claims of persecution were not sufficiently substantiated by the evidence provided. The Tribunal noted that the applicant had not provided additional information or documentation to support her claims after being invited to do so. Consequently, the Tribunal decided that the decision to refuse the protection visa could be adequately determined without a hearing, as the applicant had opted not to participate and the issues could be resolved based on the existing information.

The AAT affirmed the Minister's decision to refuse the protection visa, holding that the applicant had not demonstrated a well-founded fear of persecution or a real risk of significant harm if returned to Malaysia. The Tribunal found that the applicant could obtain protection from the Malaysian authorities and that there was no real chance of persecution for the reasons claimed. The Tribunal also determined that the applicant could relocate internally within Malaysia, thereby negating the claim that she could not obtain state protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 19 May 2020, the delegate of the Minister made a decision to refuse to grant the applicant a protection visa under s 65 of the Act. The delegate was not satisfied that there was a real chance that, if the applicant was returned to Malaysia, they would be persecuted for one or more of the reasons in s 5J(1)(a) of the Act; and was not a person whom Australia had protection obligations as outlined in s 36(2)(a) of the Act. The delegate also found the applicant could obtain, from the authorities of Malaysia, protection such that there would not be a real risk that she will suffer harm under s 36(2B)(b) of the Act; and subsequently was not satisfied that she was a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.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

On 28 November 2024, the applicant emailed to the Tribunal a completed ‘Response to hearing notice’ form dated 28 November 2024. In this form, in response to the question ‘Will you take part in the hearing scheduled for 6 December 2024’, the applicant ticked the response; ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’. On 29 November 2024, the applicant emailed the Tribunal the same completed notice dated 28 November 2024.Can a decision on the papers be made without holding a hearing? Subsection 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision without a hearing.Did the parties consent to proceeding without a hearing? In this case, in order to proceed without a hearing, the Tribunal must be satisfied that subsection 106(3) of the ART Act has been met. Paragraph 106(3)(a) and (b) of the ART Act sets out that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour or the applicant or the applicant requests the Tribunal to make its decision without holding the hearing. In this case, the Tribunal is satisfied that both paragraph 106(3)(a) and subparagraph 106(3)(b)(ii) have been met, as the only parties to the proceeding are the applicant and a non-participating party; and the applicant has ticked the response; ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’ in the completed ‘Response to hearing notice’ form dated 28 November 2024. Can the issues for determination be adequately determined in the absence of the parties? Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties. As per EIZ20 v Child Support Registrar,[1] it is for the Tribunal to decide whether the application can be ‘adequately determined’ without holding a hearing. In properly carrying out its duties, ‘the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation seek further information or hold a hearing’. [2][1] [2023] FedCFamC2G 637 (20 July 2023)[2] [2023] FedCFamC2G 637 (20 July 2023) Subsection 5AAA(2) of the Act states that ‘it is the responsibility of the non-citizen to specify all particulars of his or her claim… and to provide sufficient evidence to establish the claim’. In this regard, the Tribunal notes that:·On 18 December 2019, the applicant lodged with the Department of Home Affairs (the Department) an application for a protection visa and provided her claims for protection.·On 17 March 2020, the Department wrote to the applicant, acknowledging receipt of her valid application. She was advised that ‘all claims, supporting documentation and evidence should have been provided when you lodged your application’ but that she may bring ‘additional information [she] would like considered to [her] appointment for the personal identifiers or provide through ImmiAccount or by mail. At the time of the delegate’s decision, no further information had been received by the Department. ·On 5 June 2020, the Tribunal wrote to the applicant, acknowledging her application for review. She was advised that the Tribunal had requested the Department to provide all documents and files which they considered relevant to her application. The applicant was also requested to ‘provide material or written arguments for [the Tribunal] to consider… as soon as possible’. ·On 7 November 2024, the Tribunal wrote to the applicant, inviting her to attend a hearing. The hearing invitation requested the applicant to complete the ‘Response to hearing notice’ form and attach any additional information or new information which she wished the Tribunal to consider. Additionally, she was also asked to ‘provide all documents [she] intend[ed] to rely on to support [her] case by 29 November 2024. ·On 28 November 2024, the applicant emailed to the Tribunal a completed ‘Response to hearing notice’ form dated 28 November 2024. On 29 November 2024, the applicant emailed the same completed form dated 28 November 2024. No additional information or documents were provided with this form.·On 29 November 2024, the Tribunal wrote to the applicant, acknowledging receipt of the form, her response that she will not be participating in the hearing; and request for the Tribunal to make a decision on the papers without holding a hearing. She was advised that based on her response; the hearing had been cancelled and the Tribunal will now make a decision on her application for review on the information it has before it.

Ratio Decidendi

Legal Principle Established

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