Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2010566
Tribunal:General Member S Collins
Date:18 June 2025
Place:Melbourne
Decision:The Tribunal affirms the decisions not to grant the applicants protection visas.
The applicants request ministerial intervention.
Statement made on 18 June 2025 at 09:30am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – persons who lack wealth – employment – fear of torture – fear of killing – period of unlawful residence – state protection – request for Ministerial Intervention – decision under review affirmed
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 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Malaysia applied 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.
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Details
AGLC
2010566 (Refugee) [2025] ARTA 1587
Case
[2025] ARTA 1587
Decision Date
CaseChat Overview and Summary
In the matter of 2010566, the applicants, who were born in Malaysia, sought a protection visa from Australia, claiming they were refugees due to persecution they faced from loan sharks and their inability to secure employment due to economic hardship. The case was heard and decided by the Migration Review Tribunal (MRT). The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) and whether they qualified for complementary protection under section 36(2)(aa).
The Tribunal examined the applicants' claims under the refugee criterion, considering whether they had a well-founded fear of persecution due to their status as victims of loan sharks or economic hardship. The Tribunal concluded that even if the applicants faced serious harm from these circumstances, it did not stem from a convention reason such as race, religion, nationality, membership of a particular social group, or political opinion. Furthermore, the Tribunal found that the harm was not systematic or discriminatory in relation to the applicants. Therefore, the Tribunal held that the applicants did not have a well-founded fear of persecution as required by the refugee criterion. Additionally, the Tribunal determined that the applicants did not meet the criteria for complementary protection, as they would not face a real risk of significant harm if removed from Australia.
Consequently, the Tribunal affirmed the decision under review, denying the applicants' claim for a protection visa. The Tribunal found that the applicants did not meet the necessary criteria for either refugee status or complementary protection. The Tribunal's decision was based on the evidence presented and the legal framework outlined in the Migration Act and Regulations. The applicants' request for Ministerial Intervention was not successful. The Tribunal's reasoning and findings were based on the specific circumstances of the applicants and the applicable law, leading to the conclusion that the decision to deny the protection visa should stand.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.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 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.REASONS AND FINDINGSThe issue in this case is whether the applicants are entitled to protection on the grounds of victimisation by illegal money lenders and economic hardship. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. Background
Decision
Reasons for decision
Even if there could be said to be serious harm on the ground of economic hardship, the Tribunal finds that the applicants will not experience that harm for a convention reason in s 5J(1)(a) and not would be systematic and discriminatory as regards the applicants. Conclusion as to refugee criterion Accordingly, the applicants do not have a well-founded fear of persecution on this ground. Therefore, for these reasons given above, the Tribunal is not satisfied that either of the applicants satisfy 36(2)(a) of the ActComplementary protection