2010098 (Refugee) - [2024] ARTA 694

2010098 (REFUGEE) [2024] ARTA 694 (27 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2010098
Tribunal:General Member R McLaughlin
Date:27 November 2024

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

Statement made on 27 November 2024 at 1:21pm

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 22 August 2017 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 5 May 2017. The delegate refused to grant the visa on the basis that ‘there [was] no evidence before [the delegate] to suggest the applicant will be denied state protection due to their race or that the Malaysian government would fail to provide the applicant with the same degree of protection as that accorded to any of its other nationals if required on their return’.
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 he says he is, and that he 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 26 November 2024 via video link to give evidence and present arguments.
The hearing was conducted in the English language. No interpreter was present during the hearing, and the Tribunal found the applicant to have a good command of English. The course of the hearing gave the Tribunal no reason to doubt that the applicant was able to understand and communicate in English such that language issues did not pose any challenge to the applicant having the opportunity for a fair hearing.
BACKGROUND
The applicant is an ethnic Chinese Malaysian national. He undertook his primary and secondary education in [Country 1], where he lived with…

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 694
Decision Date: 27 November 2024

CaseChat Overview and Summary

The applicant, an ethnic Chinese Malaysian national, sought protection from the Australian government, claiming that he would face persecution if returned to Malaysia due to his race and involvement with the Bersih movement. The case was heard by the Administrative Review Tribunal (Tribunal), which reviewed the decision of the Department of Home Affairs to refuse the applicant's application for a protection visa. The Tribunal had to decide whether the applicant's claims about persecution based on his race and involvement in the Bersih movement were credible and whether he would face a real chance of persecution if returned to Malaysia.

The Tribunal found that the applicant's evidence was vague and lacked specificity, particularly regarding the incidents involving the Red Shirts. The Tribunal was not convinced by the applicant's claims, noting that the evidence provided was not corroborated by any substantial evidence or YouTube videos as alleged. Additionally, the Tribunal had concerns about the applicant's credibility due to inconsistencies in his statements and the lack of detail in his claims. The Tribunal concluded that the applicant had not established a well-founded fear of persecution if returned to Malaysia.

The Tribunal affirmed the decision of the Department, rejecting the applicant's protection visa application. The Tribunal found that the applicant had not demonstrated a genuine fear of persecution based on his race or involvement in the Bersih movement. The Tribunal did not accept the applicant’s claims as they were vague and unsubstantiated, and there were credibility concerns regarding the applicant’s narrative. Consequently, the Tribunal upheld the original decision of the Department to refuse the applicant's protection visa application.

Orders

Orders of the court

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Background

Background to the litigation

The hearing was conducted in the English language. No interpreter was present during the hearing, and the Tribunal found the applicant to have a good command of English. The course of the hearing gave the Tribunal no reason to doubt that the applicant was able to understand and communicate in English such that language issues did not pose any challenge to the applicant having the opportunity for a fair hearing.BACKGROUND The applicant is an ethnic Chinese Malaysian national. He undertook his primary and secondary education in [Country 1], where he lived with an aunt, and then [specified grades] in Australia (2003-2006). He then returned to Malaysia where he worked in [a field] before going to [Country 2] to study [a qualification](2013-2016). He did not complete this qualification. Upon his return to Malaysia, he worked as a [seller] and in other jobs until coming to Australia in February 2017. In Australia, the applicant has worked on farms, and as [occupation]. His father has passed away, and his mother lives in Kuala Lumpur (KL) and has a business (although the applicant is not sure of the kind of business). He has younger twin sisters who also live in KL, are both married, and who also have a business (although the applicant does not know what type of business this is). The applicant is in contact with his mother ‘often’, but ‘not very often’ with his sisters.Evidence before the Department The evidence before the Department at the time when the Delegate made their decision in August 2017 was: The applicant’s protection visa application (May 2017); and the applicant’s passport and identity details. The applicant was not interviewed. The applicant did not provide any additional or supporting documents prior to the Department’s decision. The claims assessed by the Department, based on the first protection visa application were therefore as follows:· That the applicant left Malaysia because he felt unsafe as he is ethnic Chinese.· That the Malaysian government persecutes ethnic Chinese people.· That the applicant cannot speak ‘Malay’ and was often told to ‘go back to China’ and that he does not belong in Malaysia.· That a Malay person stole a from the applicant’s friend’s shop and that the Police did not take any action and the friend was beaten up by 50 people.· That if he were returned to Malaysia, he would ‘die, one way or another’. Subsequent to the Department’s decision, the applicant lodged a new protection visa application (September 2017), which contained new claims in relation to ‘Bersih’. These new claims were that the applicant joined Bersih (a Malaysian clean elections civil society organisation) and had been involved in an incident where he was chased and attacked by Red Shirts (a pro-Malay group). This new claim also noted that facebook and YouTube reported on an incident in November 2019 involving Bersih and Red Shirts, and asserted that if he returned to Malaysia, he would be attacked again if the Red Shirts saw him.Steps subsequent to the Department’s initial decision

Evidence

Evidence Before The Court

This matter was then lodged for review with the AAT (now ART – the ‘Tribunal’).Further evidence submitted to the Tribunal The applicant subsequently provided additional information to the Tribunal in the form of a 1.5 page handwritten statement dated 10 September 2020. This was accompanied by a death certificate stated to be of the applicant’s father, dated March 2019. The claims made in the 2020 statement were as follows:· The applicant felt unsafe in Malaysia as an ethnic Chinese as he joined in Bersih activities.· Red Shirts paid by the government harassed Bersih people, and there is you tube video evidence dated November 2019 on this (noting that the applicant had been in Australia since 2017).· He had been involved in a Bersih event in Kuala Lumpur and Red Shirts had clashed with the Bersih supporters.o The applicant was separated from the group during this incident and beaten and robbed by 5-6 Red Shirts.o These Red Shirts yelled at him because he does not speak Malay and told him to get out of Malaysia.o The applicant sought to report this a few days later to the Police, but they did not take his report as he did not speak Malay.· A few weeks later, the applicant was seen by the Malays who had beaten him, but he managed to escape; however, he felt that he was being followed and feared that they would see where he and/or his family lived.· His father died in 2019 from ‘third degree burns on a sofa in his own home’ (he was a smoker). The applicant’s family did not make a report to the police.o The death certificate attached to the 2020 statement is asserted to be that of the applicant’s father.· The applicant does not have good skills in the Malay language, and this means it is hard to find work in Malaysia and that ‘many HR manager who interview’ him will ask him if he is Malaysian or may tell him to go back to China.· Malaysia is not a safe place for him as he feels his life is in danger from racist Malays who might also harm his mother and sisters.· He is already [age] years old and just wants a peaceful next 20 years without the humiliation and harshness of life in Malaysia. These claims were then further elaborated upon at the hearing.Claims as initially made at the hearing Subsequent to collating background information, the Tribunal asked the applicant to explain in his own words the nature of his claim. The applicant stated the following:· He wants to stay in Australia on a refugee or a bridging visa.· He does not have the courage to go back to Malaysia at the moment.· His mother is old so if he goes back to Malaysia he will not be able to support her.o His sisters have a business and their husbands work, but he does not know much about this and does not have much to do with them.o His sisters also live in Kuala Lumpur and have regular contact with his mother; they help support his mother also.· Anti-Bersih Red Shirts have been violent to him and tried to follow him; he does not want them to know where his family lives.o However, the applicant also confirmed, as he had stated earlier when the Tribunal was collating background information from him, that his mother and sisters live in different places now than when he came to Australia in 2017.· He knows that he ‘is unlikely to meet them [the Red Shirts] again’, but he does not want to take that chance.· He wants a ‘peaceful few years’ and does not want to live in fear in Malaysia; also, as he does not speak Malay, he cannot get a job and this makes him feel ‘not good’.

Decision

Reasons for decision

This new claim also noted that facebook and YouTube reported on an incident in November 2019 involving Bersih and Red Shirts, and asserted that if he returned to Malaysia, he would be attacked again if the Red Shirts saw him.Steps subsequent to the Department’s initial decision The Department assessed this new application per s 48B as a ‘request for intervention in accordance with the Minister’s guidelines on ministerial powers’. This request was rejected in September 2017 because it was within 6 months of the original protection visa decision, the applicant was at the time an unlawful non-citizen who was not in detention and who had not attempted to regularise his immigration status, and because he provided ‘no detail or evidence to support his new claims about involvement in Bersih rallies’. This matter was then lodged for review with the AAT (now ART – the ‘Tribunal’).Further evidence submitted to the Tribunal The applicant subsequently provided additional information to the Tribunal in the form of a 1.5 page handwritten statement dated 10 September 2020. This was accompanied by a death certificate stated to be of the applicant’s father, dated March 2019. The claims made in the 2020 statement were as follows:· The applicant felt unsafe in Malaysia as an ethnic Chinese as he joined in Bersih activities.· Red Shirts paid by the government harassed Bersih people, and there is you tube video evidence dated November 2019 on this (noting that the applicant had been in Australia since 2017).· He had been involved in a Bersih event in Kuala Lumpur and Red Shirts had clashed with the Bersih supporters.o The applicant was separated from the group during this incident and beaten and robbed by 5-6 Red Shirts.o These Red Shirts yelled at him because he does not speak Malay and told him to get out of Malaysia.o The applicant sought to report this a few days later to the Police, but they did not take his report as he did not speak Malay.· A few weeks later, the applicant was seen by the Malays who had beaten him, but he managed to escape; however, he felt that he was being followed and feared that they would see where he and/or his family lived.· His father died in 2019 from ‘third degree burns on a sofa in his own home’ (he was a smoker). The applicant’s family did not make a report to the police.o The death certificate attached to the 2020 statement is asserted to be that of the applicant’s father.· The applicant does not have good skills in the Malay language, and this means it is hard to find work in Malaysia and that ‘many HR manager who interview’ him will ask him if he is Malaysian or may tell him to go back to China.· Malaysia is not a safe place for him as he feels his life is in danger from racist Malays who might also harm his mother and sisters.· He is already [age] years old and just wants a peaceful next 20 years without the humiliation and harshness of life in Malaysia. These claims were then further elaborated upon at the hearing.Claims as initially made at the hearing

Ratio Decidendi

Legal Principle Established

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