2114777 (Refugee) - [2023] AATA 3112

2114777 (Refugee) [2023] AATA 3112 (22 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Anthony Nicholas Silva (MARN: 9901579)
CASE NUMBER:  2114777
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Christine Cody
DATE:22 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first and second applicants satisfy s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second applicants.

Statement made on 22 June 2023 at 1:21pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Indian ethnicity – religion – Christianity – involved in missionary work – outreach to Orang Asli settlements – wife’s brother’s forced conversion to Islam – children bullied/harmed in school – credibility concerns – inconsistent evidence – delay in claiming protection – outreach/ proselytisation work in Australia – purpose and genuineness of these activities – Malaysian law prohibiting conversion of Muslims to other religions – ‘appropriate and adapted to achieving a legitimate object of the country’ – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), r 1.12; Schedule 2
CASES
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The 4 applicants are citizens of Malaysia. The first named applicant (“the applicant”, “the husband”) is the husband of the second named applicant (“the second applicant”, “the wife”). The 2 adult applicants were married [in] June 1999. They are the parents of the 2 child applicants.
The applicants’ migration history[1] is as follows:
[1] Per delegate’s decision record provided to the first Tribunal (and thus the current Tribunal) by the applicants.
·     [Date] February 2011 – the applicants arrived in Australia holding an electronically issued visitor visa UD 976.
·     14 March 2011 – the wife applied for a Student (TU576) visa with the family as dependants.
·     17 June 2011 – the applicants were granted Student (TU576) visas.
·     15 March 2013 – the wife applied for a second Student (TU572) visa with the family as dependants.
·     22 May 2013 – the applicants were granted Student (TU572) visas.
·     21 February 2014 – the wife applied for a skilled visa (Subclass 485) with the family as dependants.

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 2114777 (Refugee)

Details

AGLC: 2114777 (Refugee) [2023] AATA 3112
Case: [2023] AATA 3112
Decision Date: 22 June 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by Malaysian nationals of Indian ethnicity who identified as Christian. The applicants claimed they faced persecution in Malaysia due to their religious beliefs and missionary work, which involved outreach to indigenous communities. They alleged that their family had experienced threats and violence, including incidents involving angry Muslim groups and damage to their property, and that their children had been bullied at school. The decision under review was made by the Refugee Tribunal.

The Refugee Tribunal was required to determine whether the applicants had established a well-founded fear of persecution or a real risk of significant harm in Malaysia, such that Australia had protection obligations towards them. Specifically, the Tribunal had to assess the credibility of the applicants' claims regarding the incidents they alleged constituted persecution, and whether these incidents, if proven, were for a Convention reason. The Tribunal also considered the applicants' outreach and proselytisation activities in Australia and their genuineness.

The Tribunal found significant credibility concerns with the applicants' evidence, particularly concerning several alleged incidents of persecution. For example, the Tribunal questioned the husband's account of an incident where he claimed to have exited a vehicle to confront an armed group, deeming it not credible given the perceived danger. Further inconsistencies were noted in the husband's and wife's accounts of other incidents, including the circumstances surrounding their decision to leave Malaysia. The Tribunal applied the principle that applicants bear the onus of providing sufficient detail and evidence to establish their claims, and that the Tribunal is not obliged to make the case for them or uncritically accept all allegations.

Ultimately, the Tribunal was not satisfied that the adult applicants met the criteria for protection obligations under s 36(2)(a) or (aa) of the relevant Act. However, it found that their young adult children were members of the same family unit and their entitlement to a protection visa was contingent on the outcome of the adult applicants' application. Consequently, the Tribunal remitted the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Non-credible evidence concerning the November 2010 incident. By the time of this event, it is claimed that the husband was so fearful that he did not allow the wife to come to the visits to the settlements anymore. He stated at the current Tribunal’s hearing that he observed that there was an angry group of Muslims with weapons (sticks and clubs) who were on motorbikes telling them to get out of the van. He said that they did get out of the van. The Tribunal put to the husband that it did not make sense that they got out of the van as they were defenceless and vulnerable to serious attack. The Tribunal put to him that they could drive the van backwards, away, and do anything to escape. In response he said that they were shouting loud and he thought if they did not get out of the van they would smash the windows and get them out. While the Tribunal accepts that people can take steps in the heat of the moment that may not be in their best interests, it is difficult to accept that if the husband, who considered that these people were so dangerous (they had already warned and threatened them twice and had already smashed windows/mirror on the van and he would no longer allow his wife to do this work), got out of the van to face angry, armed Malay Muslims. The Tribunal considers that, having regard to the other concerns, the husband’s evidence is not credible. The Tribunal notes that it put this concern to the wife as well, but she was unable to explain why the husband would have willingly got out of the van. The third and fourth incidents – December 2010: In the husband’s statement signed 9 December 2014, the third incident occurred when they were coming out of their house to go out to dinner in December 2010. The fourth incident occurred 2 days before Christmas 2010 but there was no mention in the statement as to what their plans were when this event occurred. However, contrary evidence was given about this:· In the interview with the delegate on 31 March 2015, the husband said: Two days before Christmas in 2010, when I was going to my friend’s house for dinner, we heard a big noise and when I saw, the mirror was shattered and broken. When I turned around, I saw a group of Muslims walking away. So, at that moment, I told my friend what was happening and that I was not coming over. This was when I decided that I needed to leave the country. Thus, concerning the fourth incident, it was his evidence that they were going out for dinner when this incident occurred and they then changed their plans. However, when the Tribunal asked the husband at the current hearing what their plans were on that occasion, he said that they were staying home that day with no plans to go out. The Tribunal put this different evidence to him, and he said that the rock was thrown and he can’t recall the details. This was not, however, his response when the Tribunal asked him initially.· The Tribunal also had concerns with the wife’s evidence: The wife was able to tell the current Tribunal details relevant to the third incident (which were in the husband’s statement) relating to what their immediate plans were at the time of the event, namely that they were planning to go out to a family friend’s house at the time of the event. However, when the Tribunal asked the wife what they were planning to do when the fourth incident occurred (23 December 2010), namely whether they were planning to go out or stay home), she gave changing, evasive and contradictory evidence, saying they were planning to “go home” then she said she couldn’t remember, then she said that they were planning to go out, then she said they were not planning to go out. The Tribunal put to her that it had concerns with what she can and can’t remember, and she was silent, then she mumbled and did not comment. The Tribunal put to her its concern that she was able to recall matters in the husband’s statement, which she may have learned, but she was not able to recall similar details about these events (which were not in the husband’s statement). She did not explain further.

Decision

Reasons for decision

The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are the young adult children of the adult applicants and are members of the same family unit as the first and second applicants for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first and second applicant’s application. It follows that the other applicant[s] will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.DECISION

Ratio Decidendi

Legal Principle Established

Further discussion of the evidence at hearings is set out below.CONSIDERATION OF CLAIMSCountry of reference The applicants produced passports issued by the Malaysian authorities. The Department accepted that they are citizens and nationals of Malaysia, and assessed their claims against Malaysia. The Tribunal accepts that the applicants are nationals of Malaysia, and that the appropriate country of reference for the assessment of their refugee claims and the receiving country for the purposes of their complementary protection claims is Malaysia.[5][5] [The daughter]’s birth certificate confirms that she is not a citizen of Singapore, although she was born in Singapore. The issue in this case is whether the applicants meet the definition of refugee or are entitled to complementary protection or whether they are members of the family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.Concerns as to the credibility of the applicants’ claimsRelevant law about claims The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims. Although the concept of onus of proof is not appropriate to administrative enquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70). As Kirby J observed in Dranichnikov v MIMA:[6]The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[7][6] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.[7] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].