1700813 (Refugee)

Case [2020] AATA 6187

1700813 (Refugee) [2020] AATA 6187 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700813

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:22 June 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 June 2020 at 12:45pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity, religion and political opinion – Indian Hindu – activities in support of Keadilan Party – threats and assaults by members or supporters of Barisan National (BN) Party – returned failed asylum seeker and unprotected woman – mental health – credibility – inconsistent, contradictory or implausible claims and evidence – low level supporter, not member or office holder – delay in applying for protection – applied after visitor visa ceased and period as unlawful non-citizen – late claim of rape as well as assaults – trauma, shame and language difficulties – country information – improved conditions under new government – effective protection measures – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 5AAA, 36(2)(a), (aa), (2A), (2B), 65, 91R(1), 91S, 104, 423A(2), 424AA
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Iyer v MIMA [2000] FCA 52; [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Khawar (2002) 210 CLR 1
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
WAKK v MIMIA [2005] FCAFC 225

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. 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 (the Act).

  2. [The first applicant] (the applicant), is a [Age 1]-year-old Malaysian national.   [The second applicant] is her son and is a minor.  He is also a Malaysian national.  The second applicant is a member of the same family unit and has no specific claims.

  3. The applicants applied for the visas on 17 July 2014.[1] The first applicant attended an interview at the Department of Immigration (the Department) on 15 December 2016.

    [1] The Tribunal notes the delegate decision refers to the application date as 17 July 2014.  This appears to be taken from the date the application fee was paid. However, the Department file also contains a date of 11 July 2014 as the…

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Details
AGLC
1700813 (Refugee) [2020] AATA 6187
Case
[2020] AATA 6187
Decision Date

CaseChat Overview and Summary

This matter concerns an application for a protection visa by a Malaysian woman and her son. The applicants are of Hindu Tamil Indian ethnicity. The applicant arrived in Australia in December 2011 on a visitor visa, which ceased in March 2012, after which she remained in Australia unlawfully. She applied for a protection visa on 17 July 2014. The Tribunal accepted the applicant's identity and confirmed she is a citizen of Malaysia, which was also considered her receiving country for protection assessments.

The primary legal issue before the Tribunal was whether the applicant had established a claim for protection under the Act. This involved assessing whether there was a real risk that she would suffer significant harm if returned to Malaysia. The Tribunal was required to consider the provisions of s.36(2B) of the Act, which outline circumstances where a real risk of significant harm is not taken to exist, including the availability of reasonable relocation within Malaysia, the possibility of obtaining protection from Malaysian authorities, or if the risk is faced by the general population and not personally by the applicant. The Tribunal also considered Ministerial Direction No. 84, the 'Refugee Law Guidelines', and the 'Complementary Protection Guidelines'.

In its reasoning, the Tribunal applied principles regarding credibility assessments, noting that while asylum seekers who are generally credible but unable to substantiate all claims should be given the benefit of the doubt, it is not required to accept all allegations uncritically or to have rebutting evidence before making an adverse finding. The Tribunal found that there was no evidence before it to suggest that the applicant had a right to enter and reside in a third country, a relevant consideration under s.36(3) of the Act. The Tribunal also considered the definition of "member of the same family unit" as provided in s.5(1) of the Act and r.1.12 of the Regulations, which includes children.

Orders

Orders of the court

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Background

Background to the litigation

There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.Background and migration history The applicant is a [Age 2]-year-old woman born in [City 1], Malaysia. She is a Hindu of Tamil Indian ethnicity. The second applicant is her son who is [Age 3] years old. The second applicant is the youngest of three children from her prior (traditional) marriage. Prior to coming to Australia, she was living in [City 1], Malaysia with her mother. Her father died in 2007. Her mother is now living in [City 2] and is cared for by her younger sister who is married. She has two younger brothers. She said she had no contact with one and the other is in jail. When asked she told the Tribunal she didn’t know why he had gone to jail. She said he was in jail when she left Malaysia and had not been released but she did not have any information about him. She moved to [City 1] in 2011 from Johor Bahru where she had previously lived with her now ex-husband. She said she couldn’t remember exactly when she moved but thought it was about half-way through 2011. She told the Tribunal she did not attend school at all and cannot read. Her sister went to school. She said she was currently in a relationship with a person from [Country 1], but they are not married. She did not make any claims with respect to this relationship. She was married in a traditional Hindu marriage in 1991 and has three children from that marriage, two daughters and a son (the second applicant)). The Tribunal asked whether she considered herself to be divorced in a traditional sense and she said that they were separated, and he is married to another woman. She said problems started when her son was [Age 4] years’ old. Her son was born in [year] and they separated in late 2009. She stayed in marital home and he moved out. Her oldest daughter got married and moved to her in-laws’ house. Her second daughter moved to [Country 2] in mid-2009. Her daughters remain in Malaysia and [Country 2]. Her older daughter lives in Sabah andher ex-husband is in jail for ‘gang fighting’. Prior to moving to her mother’s house, she had been commuting to [Country 2] to work. She said she worked doing [specified] jobs for a company for nearly 15 years. She couldn’t recall the name of the company. She stopped working when she moved to her mother’s house. As discussed with the applicant at the hearing, the delegate’s decision records that the applicant applied for and was granted a [Visitors] visa on 14 December 2011. She confirmed she arrived in Australia [in] December 2011. That visa ceased [in] March 2012. She applied for the protection visa on 17 July 2014. She left Malaysia on her own passport. She had no issues obtaining a passport or renewing it while in Australia. When she was leaving Malaysia, she said she was asked lots of questions and interviewed for one hour on departure. They took a copy of her passport.

Evidence

Evidence Before The Court

The Tribunal notes that the applicant’s representative made detailed written submissions regarding credibility assessments. These referred the ‘Protection Visa Processing Guidelines’ which are cited in the submissions and which form part of the Department’s PAM3 Refugee and Humanitarian instructions. The Tribunal has also considered these Guidelines and the applicant’s submissions regarding their application to her case. These issues are considered further below.CLAIMS AND EVIDENCEApplicant identity and country of reference The applicant claims to be a citizen of Malaysia. She provided a copy of her expired Malay passport issued in Australia [in] 2014 to the Tribunal. According to the delegate’s decision the applicant was issued a [visitor] visa on 14 December 2011. She arrived in Australia on this visa [in] December 2011. That visa ceased [in] March 2012 and the applicant remained in the county unlawfully. She applied for the protection visa on 17 July 2014. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection. The applicant confirmed before the Tribunal that she is not a citizen of any other country. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purposes of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.Background and migration history The applicant is a [Age 2]-year-old woman born in [City 1], Malaysia. She is a Hindu of Tamil Indian ethnicity. The second applicant is her son who is [Age 3] years old. The second applicant is the youngest of three children from her prior (traditional) marriage. Prior to coming to Australia, she was living in [City 1], Malaysia with her mother. Her father died in 2007. Her mother is now living in [City 2] and is cared for by her younger sister who is married. She has two younger brothers. She said she had no contact with one and the other is in jail. When asked she told the Tribunal she didn’t know why he had gone to jail. She said he was in jail when she left Malaysia and had not been released but she did not have any information about him. She moved to [City 1] in 2011 from Johor Bahru where she had previously lived with her now ex-husband. She said she couldn’t remember exactly when she moved but thought it was about half-way through 2011. She told the Tribunal she did not attend school at all and cannot read. Her sister went to school. She said she was currently in a relationship with a person from [Country 1], but they are not married. She did not make any claims with respect to this relationship. She was married in a traditional Hindu marriage in 1991 and has three children from that marriage, two daughters and a son (the second applicant)). The Tribunal asked whether she considered herself to be divorced in a traditional sense and she said that they were separated, and he is married to another woman.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Member of the same family unit Paragraphs 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children.Credibility assessments In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] [2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4] [3] MIMA v Rajalingam (1999) 93 FCR 220.[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.