1706015 (Refugee)

Case [2021] AATA 3097

1706015 (Refugee) [2021] AATA 3097 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706015

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:10 August 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 10 August 2021 at 6:23pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – combined hearing with partner’s separate application – economic and political conditions, and COVID-19 pandemic – mixed-religion relationship began after protection application made – Christian woman and Muslim man – credibility – worked while on holiday visa, then applied for bridging visa for work rights unaware she was applying for protection visa – some inconsistencies in claims and evidence – no mention of relationship in first hearing – country information – Syariah-based marriage laws and increasing religious conservatism – pressure to convert and persecution – Australian marriage would not be recognised – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), (6), 5LA, 36(2), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
BEH15 v MIBP [2019] FCAFC 184
Chand v MIEA [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 2
Guo Wei Rong and Pam Run Juan v MIEA (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v Li [2013] HCA 18
MIBP v SZVFW [2018] HCA 30
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220.
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZVAP v MIBP [2015] FCA 1089

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 9 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 a [Age]-year-old Malaysian citizen. She is from Sabah, Malaysia.  She identified herself in her application for protection as Christian and identified herself at the hearing as a member of [an] Indigenous Borneo tribe. She is not married and has no children.

  3. Prior to coming to Australia, she was living with her mother in [a village] and then with her [sister] in Kota Kinabalu. Her mother continues to live in the village.  She lives alone but at any one time one of her sisters is with her to support her.  She has [number] sisters.  Her oldest sister…

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AGLC
1706015 (Refugee) [2021] AATA 3097
Case
[2021] AATA 3097
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant, a Malaysian citizen, a protection visa. The applicant claimed she feared persecution if returned to Malaysia due to economic and political conditions, and later introduced claims related to her relationship with her partner, a Muslim Malaysian citizen, and the potential non-recognition of their Australian marriage in Malaysia. The review was conducted by the Tribunal, with the hearing held electronically due to the COVID-19 pandemic.

The primary legal issues before the Tribunal were whether there was a real chance the applicant would be persecuted in Malaysia for one of the five prescribed reasons under s.5J(1)(a) of the *Migration Act 1958* (Cth), or if there were substantial grounds to believe that, as a necessary and foreseeable consequence of her removal to Malaysia, she would suffer significant harm under s.36(2)(aa) of the Act. The Tribunal was required to assess the applicant's credibility, considering inconsistencies between her initial application and her oral evidence, particularly regarding her reasons for coming to Australia and her understanding of the visa application process.

The Tribunal noted significant changes and inconsistencies in the applicant's claims, including her assertion that she applied for the protection visa primarily to gain work rights rather than out of fear of persecution. While acknowledging the applicant's stated fears regarding economic hardship and the potential challenges of an interfaith relationship under Malaysian Syariah-based marriage laws and increasing religious conservatism, the Tribunal found these claims, as presented, raised credibility concerns. The Tribunal also considered the impact of the COVID-19 pandemic on economic and political conditions in Malaysia.

Ultimately, the Tribunal concluded that the decision under review should be remitted for reconsideration. This course was taken due to the complexities and evolving nature of the applicant's claims, including the introduction of the interfaith relationship aspect and the potential impact of Syariah law, which required further detailed examination in light of country information and the applicant's credibility.

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 9 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 a [Age]-year-old Malaysian citizen. She is from Sabah, Malaysia. She identified herself in her application for protection as Christian and identified herself at the hearing as a member of [an] Indigenous Borneo tribe. She is not married and has no children. Prior to coming to Australia, she was living with her mother in [a village] and then with her [sister] in Kota Kinabalu. Her mother continues to live in the village. She lives alone but at any one time one of her sisters is with her to support her. She has [number] sisters. Her oldest sister lives in Kota Kinabalu and is [an Occupation 1]. She previously lived in [Country] for 8 years. She is now married and back in Malaysia but her husband is unemployed. [Details of other sisters]. She has a partner she met in Australia, who is also an applicant for a protection visa. His application and claims are discussed further below. He is a Malay citizen from Selangor and is a Muslim. His family live in Shar Alam, Selangor. His parents are pensioners. He has three siblings. [Details of siblings deleted]. All his siblings are married. The applicant arrived in Australia [in] July 2016 on [an] Electronic Travel Authority visa. She travelled to Australia alone. The applicant applied for the 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.·She applied for many jobs but failed. A friend suggested she should travel to Australia.·If she returns, she will not have a job and will not be able to support herself and her family. The applicant submitted a copy of her Malaysian passport issued [in] 2016 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 9 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.·She applied for many jobs but failed. A friend suggested she should travel to Australia.·If she returns, she will not have a job and will not be able to support herself and her family. The applicant submitted a copy of her Malaysian passport issued [in] 2016 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 9 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 would 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 26 March 2017. The applicant initially appeared before the Tribunal on 24 September 2020. The applicant did not attend the hearing. The Tribunal was letter informed that she had difficulties with her phone and as there were records of attempts to contact the Tribunal, the matter was relisted for 25 November 2020. The hearing on 25 November 2020 was held by MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by electronic communications, 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 electronic communications. The applicant did not raise any concerns regarding the conduct of the hearing by electronic communications. 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 applicant told the Tribunal that she had a boyfriend here who is a Muslim and they were planning to get married but she was not certain with her visa status and that when they go back to Malaysia the marriage ‘will not be accepted or received’. She told the Tribunal that her boyfriend was on a ‘prospective sponsorship’ visa and that his application was being processed but being handled by a lawyer. She said it was a sponsored visa.

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 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.Credibility assessments In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[2] [2] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36] –[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

Ratio Decidendi

Legal Principle Established

Country information is discussed further below.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 claim to be seeking religious freedom and her claim based on being in an interfaith marriage. 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, why she left Malaysia, her relationship in Australia and why she fears returning to Malaysia. There were several inconsistencies between the 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 are discussed further below.Economic and political claims including COVID 19 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. At the first hearing and in her change of circumstances form she confirmed these were her claims. She added in the change of circumstances form that she was also claiming harm due to being in a ‘mixed marriage’. At the hearing on 9 March 2021 the applicant told the Tribunal she travelled to Australia because of her own financial problems. She said she was trying to find a job and it was very difficult. Her family depended a lot on her whenever there was a problem and she couldn’t hold down a job because she needed to go home regularly. She was helping her sister with her [business] and not getting paid. Sometimes she was compelled to use her own savings to supplement her sister’s [business] when she was pregnant and not working. She said a friend suggested she come to Australia so she did. She said she didn’t know she wasn’t allowed to work on a holiday visa. She felt that ‘in hindsight I feel I was lied to on social media. Promising all sorts of things, make lots of money, wanted to stay here and I wanted to work lawfully.’ She heard you could apply for a bridging visa and she wanted to work and ‘make the best of it’ so she applied for a bridging visa. The Tribunal asked if she understood she had applied for a protection visa and she said she didn’t at the time. She said she had heard about a student visa but it was beyond her means and would have restricted her work rights. The Tribunal asked if it was correct to say that she applied for the protection visa because she wanted work rights and this was the visa she could afford and she said ‘yes’. When asked at the second hearing about her fears on return to Malaysia, she said that if she went back she will not be able to find a job. She said that no one would employ her because she doesn’t have qualifications and her [sisters] have their own commitments so the only thing she would be doing is looking after her mum and she would have no source of income and her sisters would not help her financially. She said this was the same situation when she left.