1706008 (Refugee)

Case [2021] AATA 3440

1706008 (Refugee) [2021] AATA 3440 (12 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1706008

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:12 July 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 12 July 2021 at 10:25am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – LGBT women – economic conditions – employment opportunities – return visit to Malaysia – family violence – rejection by family – late raising of a claim to the Tribunal – credibility concerns – long-term same-sex relationship – partner abandoned the Muslim faith – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J, 5L, 5LA, 36, 65, 423A
Migration Regulations 1994, Schedule 2

CASES

MIAC v MZYYL [2012] FCAFC 147
MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324

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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

    Background

  2. The applicant is [an age]-year-old Malaysian citizen. She is from Sabah, Malaysia.  She is Catholic and identified herself as ethnically Chinese and Indigenous Borneo.  She is not married and has no children.

  3. She arrived most recently in Australia [in] July 2016 on a UD-601 Electronic Travel Authority visa. She travelled to Australia alone. She had previously travelled to Australia on a UD-601 Electronic Travel Authority visa [in] August 2015.  She was granted a [temporary] visa on 2 November 2015 and departed Australia [in] January 2016.  Before the Tribunal she confirmed she had returned to Malaysia at that time.

  4. She has one brother in Australia who was also an applicant for a protection visa.  That application was not before the Tribunal. Information before the Tribunal indicated the applicant’s brother’s visa had been refused by the Department of Home Affairs (the Department) and affirmed by the Tribunal, differently constituted. He remains in Australia.  The Tribunal notes that the applicant’s claims did not relate to her brother.

  5. Prior to coming to Australia, she was living in Sabah with her family.  Her parents remain in Sabah and are not working.  In addition to her brother in Australia, she has [number of] sisters living in Sabah.

  6. She applied for a protection visa on 4 October 2016.

    Issues

  7. The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s.5J(1)(a)…

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1706008 (Refugee) [2021] AATA 3440
Case
[2021] AATA 3440
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Immigration and Border Protection's decision to refuse the applicant, a Malaysian citizen, a protection visa. The applicant arrived in Australia in July 2016 and applied for a protection visa in October 2016. The delegate refused the visa on the basis that the applicant was not a refugee under section 5H of the *Migration Act 1958* (Cth) and that Australia did not have protection obligations under section 36(2)(aa) of the Act.

The primary legal issues before the Tribunal were whether there was a real chance that the applicant would be persecuted upon return to Malaysia for one or more of the five reasons specified in section 5J(1)(a) of the Act, and alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of her removal to Malaysia, she would suffer significant harm. The Tribunal was required to consider the applicant's claims of fear of persecution based on economic conditions, political issues, and later, her status as an LGBT woman.

The Tribunal noted that the applicant's claims evolved significantly during the review process, particularly with the introduction of claims relating to her LGBT status. The Tribunal reminded the applicant of her responsibility under section 5AAA of the Act to specify all particulars of her claim and provide sufficient evidence, and the implications of section 423A regarding adverse inferences drawn from new claims or evidence raised without reasonable explanation. The Tribunal identified several inconsistencies between the applicant's initial application and her oral evidence, raising credibility concerns regarding her employment history, family circumstances, and prior travel to Australia. Despite these concerns, the Tribunal concluded that the decision under review should be remitted for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).Background The applicant is [an age]-year-old Malaysian citizen. She is from Sabah, Malaysia. She is Catholic and identified herself as ethnically Chinese and Indigenous Borneo. She is not married and has no children. She arrived most recently in Australia [in] July 2016 on a UD-601 Electronic Travel Authority visa. She travelled to Australia alone. She had previously travelled to Australia on a UD-601 Electronic Travel Authority visa [in] August 2015. She was granted a [temporary] visa on 2 November 2015 and departed Australia [in] January 2016. Before the Tribunal she confirmed she had returned to Malaysia at that time. She has one brother in Australia who was also an applicant for a protection visa. That application was not before the Tribunal. Information before the Tribunal indicated the applicant’s brother’s visa had been refused by the Department of Home Affairs (the Department) and affirmed by the Tribunal, differently constituted. He remains in Australia. The Tribunal notes that the applicant’s claims did not relate to her brother. Prior to coming to Australia, she was living in Sabah with her family. Her parents remain in Sabah and are not working. In addition to her brother in Australia, she has [number of] sisters living in Sabah. She applied for a protection visa on 4 October 2016.Issues The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s.5J(1)(a) for the purpose of s.36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.CLAIMS AND EVIDENCEProtection claimsProtection visa application The applicant initially presented her claims in her protection visa application in which she states, in summary, that:·She left Malaysia because of political and economic issues. There were no jobs to support her family and herself.·A friend ([named]) suggested that she come to Australia.·She has applied for jobs in Malaysia but failed because of the economic and political issues.·Malaysia has a bad economy. The applicant submitted a copy of her Malaysian passport issued [in] 2015 to the Department. No further evidence was submitted to the Department. The applicant was not interviewed by the Department in relation to the application. The delegate’s decision The delegate refused the visa on 3 March 2017. The applicant provided a copy of the delegate’s decision to the Tribunal with her application for review.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.CLAIMS AND EVIDENCEProtection claimsProtection visa application The applicant initially presented her claims in her protection visa application in which she states, in summary, that:·She left Malaysia because of political and economic issues. There were no jobs to support her family and herself.·A friend ([named]) suggested that she come to Australia.·She has applied for jobs in Malaysia but failed because of the economic and political issues.·Malaysia has a bad economy. The applicant submitted a copy of her Malaysian passport issued [in] 2015 to the Department. No further evidence was submitted to the Department. The applicant was not interviewed by the Department in relation to the application. The delegate’s decision The delegate refused the visa on 3 March 2017. The applicant provided a copy of the delegate’s decision to the Tribunal with her application for review. The delegate refused the visa on the basis they were not satisfied that there is a real chance that, if the applicant was returned to Malaysia, she will be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s.5H and the criterion in s.36(2)(a) of the Act was not satisfied. The delegate found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Malaysia, there is a real risk that she will suffer significant harm. Accordingly the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.Review application The applicant filed her application for review on 24 March 2017. The applicant initially appeared before the Tribunal on 24 September 2020 and again on 8 March 2021 to give evidence and present arguments. The hearing on 24 September 2020 was held by telephone. The hearing was held during the COVID-19 pandemic. At the time the hearing was conducted, the Tribunal registry was closed and the Tribunal was not undertaking in-person hearings. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns regarding the conduct of the hearing by telephone. At that hearing the Tribunal discussed with the applicant whether there were any changes to her claims and the information on which she was seeking to rely in support of her claims. The hearing on 8 March 2021 was held in person at the Perth registry. The hearings were conducted with the assistance of an accredited interpreter in the English and Malay languages. The applicant was not represented in relation to the application to the Tribunal.

Decision

Reasons for decision

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.DECISION MAKING FRAMEWORKCriteria 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 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 fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c). When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

Ratio Decidendi

Legal Principle Established

The Tribunal discussed with the applicant at the hearing the 2019 DFAT Report in considering the claims raised in the application. The Tribunal also considered the most recent DFAT Report dated 29 June 2021. As noted above, the Tribunal considers that the information contained in the most recent report is in similar terms to and consistent with the 2019 DFAT Report such that it raised no new issues with respect to the application for review.CONSIDERATION In her application and at hearings before the Tribunal the applicant claimed to fear harm on several bases. The Tribunal considered each of the integers of the applicant’s claims for protection individually and then cumulatively. As noted above, the applicant’s claims at the hearing changed significantly, principally with the introduction of claims relating the applicant’s lesbian or LGBT[10] status.[10] The Tribunal notes the applicant referred to her ‘LGBT’ status and the Tribunal has adopted this terminology except in relation to country information where the term LGBTI is more commonly used. At the first hearing the Tribunal explained to the applicant the obligations in s.5AAA and the requirements of s.423A. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The Tribunal explained that s.423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made. During the hearing, the Tribunal discussed with the applicant her background, her family, her education, where she lived, her employment history in Malaysia and Australia, her prior travel to Australia, her sexual orientation, why she left Malaysia, her relationships in Malaysia and Australia and why she fears returning to Malaysia. There were several inconsistencies between some of her claims in her application for a protection visa and her oral evidence to the Tribunal. This raised concerns in relation to the credibility of those claims. These included in relation to her employment history, family circumstances and prior travel to Australia. These are discussed further below.Economic or related claims In her application for protection, the applicant claimed she could not return to Malaysia because she would be unable to find a job due to economic conditions in Malaysia and would be unable to support herself financially. She confirmed these claims at the first hearing and added that she had borrowed money in Malaysia which made her financial situation worse.