1607694 (Refugee)

1607694 (Refugee) [2017] AATA 2369 (26 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607694
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:26 September of 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(b) of the Migration Act.

Statement made on 26 September 2017 at 10:06am
CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Homosexual woman – Past harm from family and former male partner – Genuine spousal relationship
LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2, cl 1.12(1)(a)
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of the Federation of Malaysia, applied for the visa [in] February 2016. The delegate refused to grant the visa on the basis that the applicant it was reasonable for her to relocate to another part of Malaysia and that the applicant will have effective protection available to her if she returned to Malaysia.
CRITERIA FOR A 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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant claimed to be born on [date] in Kota Kinabalu in the Malaysian state of Sabah and that she is a citizen of the Federation of Malaysia.
On departmental file [is] a certified copy of the applicant’s valid passport issued [in] 2015.[1] Also on the same file is a certified copy of the applicant’s national identification card.[2]
[1] DIBP Folio 44
[2] DIBP Folio 43
The applicant claimed to be able to speak, read and write English and Bahasa Malaysia; that her ethnicity is Kadazan-Dusun; and that her religion is Christian.[3]
[3] DIBP Folio 36
The applicant claimed that her father and mother resided in the Malaysian state of Sabah and she has [siblings]. The applicant claims that she has never been married and has no children.
Between 2007 and 2015, the applicant claimed she lived in Puchong in the Malaysian state of Selangor. Prior to that the applicant claimed she resided in Kota Kinabalu where she was born.
The applicant nominated [Ms A] as her partner and who currently resides in [Australia].
In the applicant’s submitted 866C form, she outlined the reasons the applicant is owed Australia’s protection obligations. They are summarised as follows
·The applicant claimed that she left her country because it was not safe for her as she had been abused, beaten and threatened by her ex-boyfriend;
·The applicant claimed she was forced to marry him by her family but she refused;
·The applicant claimed she was pressured to marry the ex-boyfriend because she was having a secret relationship with a woman, which she had kept secret for more than a year;
·The applicant claimed it was kept secret because her country and her family couldn’t accept homosexual relationships as they really anti-homosexual and that it was claimed that they threatened to kill me and my girlfriend if they saw both of us together again;
·The applicant claimed that if she returned to Malaysia, she will be tortured or killed because of the threats and the beating in the past;
·The applicant claimed that she had been kicked, slapped and smashed in the head and punched so many times by her former boyfriend;
·The applicant claimed she tried to escape to Melaka (Malacca) with her girlfriend, but they were both caught and she was dragged back to her room where she was detained; and
·The applicant claimed that she did not seek help as she feared being imprisoned for homosexuality and there is nowhere safe for her in Malaysia because it is a Muslim country with no rights for homosexuals and her former boyfriend will find her anywhere within Malaysia.
A delegate for the Minister examined the applicant’s application for protection and refused to grant the applicant a protection visa based on the country information indicating that criminal offences against homosexuality in Malaysia are hardly ever applied; that the levels of discrimination did not amount to serious harm or significant harm over time; and that relocation within Malaysia was reasonable in her circumstances.
The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal on 29 May 2016.
No documentary or corroborative evidence, such as witness statements or photographs, to support the applicant’s critical claims was submitted to the Department.
Evidence at a Scheduled Hearing
On 23 June 2017, the applicant appeared before the Tribunal, face to face, to provide further evidence and arguments. The applicant was supported by an interpreter in the Malay and English languages.
[Ms A] claiming to be in a long term relationship with the applicant provided oral evidence at the Tribunal as a witness.
At the end of the hearing, the Tribunal requested the applicant submitted some witness statements and other evidence to support her claims.
Post Hearing Submission
On 14 July 2017, the applicant submitted to the Tribunal a number of documents as part of her post hearing submission.
Included in this submission was a jointed statement by the applicant and her putative partner date [in] July 2017.[4] In this statement, it was claimed that the applicant and her partner were in a de facto relationship since [date] February 2014; that the met on social media and first met [in] January 2014 when they went to the cinema. Both of them maintained the relationship over the phone by text and by conversation and that they had their first kiss [in] February 2014. [Ms A] describes the applicant as very shy and nervous. The applicant claimed [Ms A] was very friendly and talkative. The applicant acknowledged she was still in a relationship with her then boyfriend at this stage. The applicant and her partner claimed they have been together for three years during which they have had good and bad times and that they want to marry but our country ‘ doesn’t allow lgbt community in that country’. The applicant and her punitive partner claimed they want to build a family together, either adopt children or through artificial fertilisation and to buy a house and that they both less judged in Australia which is fair and safe.
[4] AAT Folio 27-29
Also attached to this post hearing submission were:
·     A copy of the [Ms A]’s passport, indicating that she was a Malaysian citizen and born on [date];[5]
·     A copy of the applicant’s booking to travel [indicating] that the applicant and [Ms A] travelled together; [6]
·     Numerous printed pages from the applicant’s [social media] account, indicating the development of the applicant’s romantic relationship between [date] April 2014 and [date] April 2016; [7]
·     Numerous news articles about the treatment of LGBT persons in Malaysia; [8]
·     A 2015 submission by the International Gay and Lesbian Human Rights Commission to the UN Commission on the Status of Women; [9]
·     A signed 888 statement form from [another person], residing in Sabah in Malaysia, claiming to know [Ms A] since 1998 and the applicant since 2014 and attesting to the applicant’s relationship with [Ms A] to be genuine and continuing.[10]
·     A signed 888 statement form from [Ms B] residing in [Australia], claimed to know the applicant and [Ms A] since September 2016. Attached to this were pictures from a social media account of the applicant, [Ms A] and [Mr B] at a nightclub.[11]
[5] AAT Folio 30-33
[6] AAT Folio 34
[7] AAT Folio 35-60
[8] AAT Folio 61-76
[9] AAT Folio 77-91
[10]
[11] AAT Folio 96-104
Country of nationality
The applicant claims to be a citizen of the Federation of Malaysia and provided a copy of her passport to the Department with her application, as well as her identification card. With no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Refugees Convention and Complementary Protection Provisions
Although the Tribunal had a limited number of credibility concerns about the applicant’s claims, the Tribunal found that much of the country information was generally supportive of those claims for protection, in the Tribunal accepting that the applicant have a membership of particular social group, as a homosexual woman, in this decision it has not made an exhaustive assessment of these claims with findings as they pertain to s.36(2)(a) and s36(2)(aa).
As indicated above, in this decision, the Tribunal has decided to restrict its assessment of claims and evidence pursuant to s.36(2)(b).
Accepted Claims
The applicant provided credible evidence about the development of her sexuality generally and specifically about the development of her relationship with [Ms A] whose separate application was assessed by the Tribunal (AAT number: 167718).
Based on the Tribunal’s overall favourable credibility assessment towards the applicant and the witness who was very persuasive, the witness statements and the available country information about social stigma towards lesbians in Malaysia, the Tribunal accepts the applicant is a homosexual woman and considers herself a lesbian, and for the purposes of s5J(1)(a), belongs to a membership of particular social group as a homosexual woman.
The Tribunal has considered whether the applicant is a genuine spousal relationship with [Ms A] and that they both experienced threats or other harm in the past, as claimed: As mentioned above, the applicant submitted witness statements to support that they in a relationship. She also provided printed [evidence] that the relationship in question which not only demonstrates a great deal of communication between the two parties but also the beginning of their relationship from [date] February 2014 in Selangor. It was claimed by the applicant that the relationship began after a movie date and that the applicant told her that [Ms A] was in a relationship at the time with a man, [and] that the applicant wanted to ended it but was unsure how to. The applicant claimed that she continued to meet her putative partner about one or twice a month in secret over almost a two year period; and that during that time, their romantic relationship had become sexual.
The applicant claimed that her then boyfriend became suspicious and then became very jealous, threatening and violent towards her (kicking, punching and being pushed against a wall) when he saw the romantic pictures and texts that the two were exchanging. The applicant claimed the boyfriend hit her and that the applicant’s parents found out about the secret same sex romance and then detained her at her parents’ home. The applicant claimed that the boyfriend called her to insult [Ms A] and threatened to punch and even kill her. The applicant claimed that she and [Ms A] made a plan to depart for Melaka by bus but the applicant was prevented by her parents at the bus station. Soon after this, the applicant and [Ms A] planned to depart Malaysia, altogether for Australia where they hoped they could marry.
The Tribunal notes that the applicant has submitted evidence that they travelled together in Australia by submitted airline tickets and a relationship document issued by the relevant authority in [Australia] and they have claimed to reside in the same places while in Australia The applicant claimed she loved [Ms A] and that she was emotionally dependent on her. The Tribunal notes that the applicant’s demeanour and dress, in contrast to her pengkid (or tomboy) partner, was very feminine, shy and appeared to lack much in confidence. Both also claimed that they did not realise marriage between two adult women was not permitted but hoped the laws will change so they could marry. During the hearing, [Ms A] as a witness mentioned that she was interested in utilising artificial reproductive technology to have a child. Both claimed at the scheduled hearing that when they are in public in Australia, they hold hands and hug as a couple and they have not encountered any insults or other stigma as they had in Malaysia.
The Tribunal found the applicant’s oral evidence regarding her relationship with [Ms A] to have been consistent with the information she had previously provided to the Department. In particular, [Ms A] was able oral evidence was also very consistent and very persuasive during the applicant’s scheduled hearing. On the evidence before it the Tribunal accepts the applicant had a long term same sex relationship with [Ms A] which has been ongoing committed relationship under the claimed circumstances outlined above and that they have shared the same household since their arrival in Australia in February 2016.
Membership of the Same Family Unit
As it is accepted that the applicant’s claimed de facto spouse has had her protection visa matter remitted by the Tribunal for reconsideration as someone who satisfies s.36(2)(a), the Tribunal has examined if the applicant is a member of the same family unit of that person.
At the time of application the applicant and the other review applicant (who was a witness for this particular review) have consistently claimed that [Ms A] is her de facto wife; that their relationship has been ongoing, mutually exclusive to all others. Since their applications for protection visas, the applicant and [Ms A] have remained in the same household and provided a number of witness statements to support these claims.
The Tribunal does not have any credibility concerns that the applicant and [Ms A] are in a long term spousal relationship given the consistent and persuasive oral testimony and mutually supportive documentary evidence.
It also accepts the applicant and [Ms A] have been in regular contact and that they both share the commitment to bring own a house and form a family with shared values. Since their simultaneous arrival to Australia, the Tribunal also accepts that the applicant has never lived separately from her de facto wife and it is not the intention or either to be apart on a permanent basis, if they are required to return to Malaysia.
The Tribunal accepts the applicant’s evidence that the applicant is the same sex de facto partner of the [Ms A] for the purposes of s.5CB as there is little evidence to the contrary that the applicant is not in married relations for the purposes of section 5F (married relation) but otherwise the applicant and [Ms A]:
· have a mutual commitment to a shared life to the exclusion of all others; and
§ have a relationship between them is genuine and continuing; and
§ do not live separately and apart on a permanent basis; and
§ they are not related by family
Does the applicant satisfy s.36(2)(b)?
The Tribunal has also considered its own recent practices in relation to s.36(2)(b).[12]
[12] Decision Record 1201801 made in [June] 2012.
Based on the information before the Tribunal and its findings above the nature of the applicant’s relationship with [Ms A], the Tribunal is satisfied the applicant and [Ms A] are in a genuine same sex de facto spousal relationship and that the applicant satisfied clause 1.12(1)(a) of the Migration Regulations, that she has membership of the same family unit as the other review applicant, [Ms A], for the purposes of this application for review.
Based upon the evidence presented at the Tribunal and based on the accepted claims as outlined in this decision, the Tribunal finds that the applicant is the de facto spouse of [Ms A] whom the Tribunal in a separate review application (AAT number: 1607718) was recently found to be a person who satisfies s.36(2)(a).
Having considered the Tribunal’s reasoning in the case of the applicant’s de facto partner, the Tribunal as presently constituted is satisfied that the applicant’s de facto partner continues to be a non-citizen in Australia who satisfies the criterion in s.36(2)(a) and is entitled to a protection visa provided the remaining criteria for the protection visa is met.

Accordingly the Tribunal is satisfied that the applicant is a member of the same family unit of the party mentioned above as a de facto partner for the purposes of s.36(2)(b)(i).
It follows from this that the fate of this review application before the Tribunal depends on the outcome of his de facto partner and that she will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria, including health and character requirements, for the visa are met.
Accordingly, the Tribunal finds that the applicant satisfies section 36(2)(b) as she is member of the same family unit as a non-citizen in Australia who satisfies section 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(b) of the Migration Act.
Brendan Darcy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2369

26 September 2017

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

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