2100574 (Refugee) - [2025] ARTA 1140

2100574 (REFUGEE) [2025] ARTA 1140 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2100574

Tribunal:General Member C Stokes
Date:3 March 2025

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

Statement made on 03 March 2025 at 2:22pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – Suluk ethnicity – economic conditions – business debts – employment – internal relocation – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 351, 367, 499
Migration Regulations 1994, Schedule 2
CASES
Januzi v SSHD [2006] 2 AC 426
MZANX v MIBP [2017] FCA 307
SZATV v MIAC [2007] HCA 40
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 then Minister for Home Affairs on 19 March 2018 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 24 March 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or (aa) of the Act.
On 24 January 2021, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was unrepresented in relation to the review.
The applicant also lodged two further applications (2100768 and 2100958) with the Tribunal with respect to the same decision of the delegate. Those two applications will be dealt with in further decisions of the Tribunal following the making of this decision. The applicant’s wife and his eldest child also applied for protection visas. Those visas were refused by a delegate on 28 August 2017. The Tribunal has not received an application to review that decision and it was explained to the applicant at the outset of the hearing on 6 February 2025 that the Tribunal is only reviewing the decision to refuse the applicant’s protection visa. The Tribunal also encouraged the applicant to seek migration advice about the visa status of his wife and child and the impact this decision may have on them.

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 2100574 (Refugee)

Details

AGLC: 2100574 (Refugee) [2025] ARTA 1140
Case: [2025] ARTA 1140
Decision Date: 3 March 2025

CaseChat Overview and Summary

This case involves a Malaysian applicant who applied for a protection visa in Australia, citing economic difficulties and financial instability as reasons for being unable to return to Malaysia. The application was initially rejected by a delegate, who found that the applicant did not meet the criteria for a protection visa under the Migration Act 1958 (Cth). The applicant then sought a review by the Administrative Appeals Tribunal (AAT). The central legal issues were whether the applicant met the criteria for a protection visa under the Act, specifically if he qualified as a refugee or was eligible for complementary protection. The AAT had to assess whether the applicant’s claims of economic hardship and fear of persecution due to his Suluk ethnicity amounted to significant harm warranting protection.

The AAT considered the statutory criteria for a protection visa, which require either a well-founded fear of persecution or a real risk of significant harm upon return to the country of nationality. The AAT examined the evidence provided by the applicant, including country information on Malaysia's economic conditions and the Suluk ethnicity's status within Malaysia. The Tribunal noted the applicant's long-term residence in Australia, his family's integration into the Australian community, and the significant delay in notifying the applicant of the delegate's decision. Despite these considerations, the AAT found that the applicant's claims did not meet the statutory threshold for protection. The Tribunal concluded that the applicant could reasonably relocate within Malaysia and thus did not face significant harm, affirming the delegate's decision.

In its decision, the AAT found no basis to refer the matter to the Minister for consideration under section 351 of the Act due to the exceptional circumstances identified. The Tribunal determined that the applicant's extensive integration into Australian society and the best interests of his children did not override the requirement that he meet the statutory criteria for a protection visa. The AAT ultimately upheld the delegate's decision to refuse the protection visa application.

Orders

Orders of the court

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Background

Background to the litigation

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.Applicant’s background The applicant is [an age]-year-old man from Sabah Malaysia. He arrived in Australia [in] December 2016 as the holder of a UD-601 Electronic Travel Authority with his wife and one child. He has since had a further 3 children while living in Australia and has not left Australia since arriving. The applicant has provided the Department with a copy of his Malaysian passport and Malaysian Identity card (MyKad). He has consistently claimed to be from Malaysia and there are no apparent concerns in relation to his identity. There is no evidence that the applicant has a right to enter and/or reside in any third country and as such s 36(3) of the Act does not apply. I am satisfied that Malaysia is the applicant’s receiving country and have assessed his claims against that country.Evidence before the Department In the application for the protection visa, the applicant claimed he could not return to Malaysia because of financial problems. He claimed he and his wife had debts with the government and his business struggled and closed. He also claimed to have a large family who depend on him financially. Finally, he claimed that he was worried he would not be able to repay their debts due to the economic problems in his country. The delegate did not invite the applicant to an interview. On 19 March 2018, the delegate refused the application for the visa the basis that the applicant had not claimed to fear harm in Malaysia because of his race, religion, nationality, political opinion or as a member of a particular social group and therefore did not meet the definition of refugee in s 5H of the Act and did not satisfy s 36(2)(a). Further, after considering the country information about the Malaysian economy, the delegate found that any economic hardship the applicant may suffer on their return did not amount to significant harm. The delegate concluded that there was no real risk of the applicant facing significant harm, as defined in s36(2A), if he returned to Malaysia in the foreseeable future and therefore the applicant did not satisfy s 36(2)(aa) of the Act. While the delegate’s decision was dated 19 March 2018, the applicant was not notified of the decision until 4 January 2021. Evidence before the Tribunal On 24 January 2021, the applicant sought review in the AAT. He provided a copy of the delegate’s decision and the letter from the Department notifying him of that decision. On 24 December 2024, the applicant provided the Tribunal with a written statement claiming to fear harm due to his Suluk ethnicity. On 31 January 2025, the applicant provided the Tribunal with a further written statement along with multiple supporting documents.

Evidence

Evidence Before The Court

For the following reasons, I have concluded that the matter should be affirmed. 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.Applicant’s background

Decision

Reasons for decision

For the reasons given above, I find that it would be reasonable for the applicant to relocate to Peninsular Malaysia where there would not be real risk of significant harm for the purposes of s 36(2B)(a) of the Act and the applicant therefore does not satisfy s 36(2)(aa) of the Act.Conclusion For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) 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 criterion in s 36(2).Referral to the Minister I have also considered whether it is appropriate to refer the case to the Department for consideration by the Minister pursuant to s 351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. In my view, there are several exceptional circumstances in this case, as follows:a.The length of time the applicant has been in Australia and his level of integration into the Australian community:i. The applicant has been living in Australia for 9 years (since 2016), where he has been raising his 4 children, 3 of which were born in Australia.ii. The applicant has provided the Tribunal with a number of letters of support demonstrating his connection to the South Australian community, namely from the [Official 1] of [Agency 1] who noted the applicant and his family’s active involvement in programs and events organised by the association, his employer who has described him as a hard worker, honest and reliable and his property manager who has described him as polite and respectful to deal with. b.The failure of the department to properly notify the applicant of the delegate’s decision in 2018 and the fact that he was not notified until 4 January 2021, has led to an unfair and unreasonable result in this case: i. Between the delegate making the refusal decision of his protection visa and notifying him of the decision, the applicant had two more children and he and his family have further integrated into the South Australian community and way of life.c.The Convention on the Rights of the Child, including the best interests of the child – which must be treated as a primary consideration:i. As mentioned above, the applicant’s eldest child has not been in Malaysia since she was [age] old and his other 3 children were born in Australia and have never been to Malaysia. While the children are not Australian citizens the older 3 children have been attending school and preschool and all have integrated into the Australian community. The applicant has provided the Tribunal with excerpts from his children’s school journals as well as photographs of them attending community events.

Ratio Decidendi

Legal Principle Established

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