1716527 (Refugee)

[2022] AATA 4555

1716527 (Refugee) [2022] AATA 4555 (22 November 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1716527

COUNTRY OF REFERENCE:             Malaysia

MEMBER:Dr Jason Harkess

DATE:22 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Permanent Protection (Class XA) (Subclass 866) visas for reconsideration with directions that:

·the First Applicant meets the criteria contained in s 36(2)(a) of the Migration Act 1958 (Cth); and

·the Second Applicant is a member of the same family unit as the First Applicant.

Statement made on 22 November 2022 at 7:11am

CATCHWORDS
REFUGEE – protection visa – Malaysia – member of particular social group – married against choice of parents – extra-marital sexual encounter discovered by religious police – fined and sentenced to one month’s imprisonment – departed while on bail pending appeal – country information – Sharia law discriminatory and systematic and imprisonment amounts to significant harm – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(4)(b), (5), 36(2)(a), (b)(i)
Migration Regulations 1958 (Cth), Schedule 2

CASE
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v Khadgi (2010) 190 FCR 248
MIEA v Guo (1997) 191 CLR 559

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

INTRODUCTION AND Overview

Application for Review – Refusal of Protection Visa

1. The Applicants are citizens of Malaysia. They seek review of decisions made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant them protection visas. The First Applicant is [Age 1] years of age and is presently residing in Victoria, Australia. The Second Applicant is the spouse of the First Applicant, is [Age 2] years of age and resides in Victoria, Australia with the First Applicant.

2. The Applicants originally applied for the protection visas on 27 January 2017. The visas were refused on 10 July 2017. The Applicants lodged their review application with the Tribunal on 29 July 2017. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicants their visas.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

Type of Visa

1. The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.’[6]

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicants are citizens of Malaysia, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

3. A person meets the complementary protection criterion if there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

Delegate's Reasons for Visa Refusal

1. In their original application forms lodged with the Department of Immigration and Border Protection (‘the Department’), the Applicants sought protection visas claiming that they met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that they met either. The Applicants did not claim to meet the family member criterion. The delegate therefore refused the visa application.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicants when they were notified of the delegate’s decision. That notification prompted the Applicants to lodge the present review application. The Applicants also provided a copy of the delegate’s decision record to the Tribunal following lodgement of the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether either the Applicant meets the refugee criterion;

   (b)whether either Applicant alternatively meets the complementary protection criterion.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 21 September 2022. The First and Second Applicants participated at the hearing before the Tribunal by video to give evidence and present arguments in support of their case.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages, who was at the hearing by video.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicants protection visas ought to be remitted for reconsideration in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the Applicants' original written visa applications;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicants in relation to their case;

   (d)the oral evidence and arguments presented at the hearing;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department;[8]

   (f)country information assessments relating to Malaysia that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]

   [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [9] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]

consideration oF APPLICANT’S CASE

[10] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicants were obliged to complete a form when they lodged their protection visa application. The form requested that they provide details about their personal background, their circumstances leading up to their arrival in Australia, and their reasons for applying for protection visas.

Applicants’ Background

1. In their application forms, the Applicants stated that they come from [Town], Pahang, Malaysia. They stated that they are citizens of Malaysia by birth. A copy of their passports, which they provided to the Department, corroborated this claim. They further said that they do not hold citizenship of any other country.

2. The Applicants married on [Date 1]. Since their protection visa applications were determined by the delegate, the Applicants have had two children in Australia.

Arrival in Australia

1. The Applicants arrived in Australia [in] December 2016, having been granted Subclass 601 (Electronic Travel Authority) visas on 28 November 2016, which were due to cease on 2 March 2017. They applied for protection visas on 27 January 2017, which was before the expiry of their Subclass 601 (Electronic Travel Authority) visas. They have not departed Australia since first arriving.

Protection Claims

1. The Applicants’ original claims for protection are to be found in answers to questions in their protection visa application forms. The relevant questions posed in the form, and each Applicant’ answers given, are reproduced verbatim (spelling, grammatical and expressional errors included):

   First Applicant

   88    I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in. This includes countries you are a citizen or national of or you have a current visa for)..

   MALAYSIA

   89    Why did you leave that country(s)? Provide specific details

   I am moving away from my family furthermore they also chase me out because different mentation. They are more conservative in choosly designate daugther in law as I have my own, so my girlfriend and I make decision to come here as one of our best decision in my life to start new life here as Australia is a best country ever.

   90    What do you think will happen to you if you return to that country(s)?

   If I still want to return to Malaysia my family will again forcing me to married to their choice.

   91    Did you experience harm in that country(s)?

   Noþ►   Go to Question 93

   Yes¨►   Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)

   92    Did you seek help within the country(s) after the harm?

   No¨►   Give reasons for why you did not try to seek help

   Yes¨►   Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)

   93    Did you move, or try to move, to another part of the country(s)to seek safety?

   No¨►   Give reasons for why you did not try to move to another part of the country(s)

   Yesþ►   Give details (including where you tried to move, why you were unable to move or where you moved to and what happened)

   I have tried to move to other state with my girlfriend but my family still can find us because they spread it in social network. They also hired private investigator to find out us.

   94    Do you think you will be harmed or mistreated if you returrn to that country(s)?

   Noþ

   Yes¨►   Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)

   95    Do you think the authorities of that country(s) can and will protect you if you go back?

   Noþ►   Give details about why you think the authorities could not, or would not, protect you

   My situation is a personal matter so the law in my country they will not involved in family and personal problem as long as didn’t involved the national safety and security.

   Yes¨►   Give details as to which authorities you think would protect you

   96    Do you think you will be able to relocate within that country(s)?

   Noþ►   Give details about why you are unable to relocate

   Nowadays, technology limit my movement within my country furthermore the high way that connect from each state make my movement not easy they can find me in short time.

   Yes¨►   Give details as to where you could relocate

   Second Applicant

   88    I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in. This includes countries you are a citizen or national of or you have a current visa for)..

   MALAYSIA

   89    Why did you leave that country(s)? Provide specific details

   My decision to come to Australia was made on the family problem I have. As regarding my own right in choosing my soulmates but my parents and family forcing me to married with their choice which I have already have my own choice and my own soulmate. The implication from this situation makes my parents and family block my finances and chase me out from the house and from their life. This enviroment make me stress and despress and to continue stay in my country make my stress and despression more worse. Furthermore, my decision to come to Australia make my life now more calm and peace until I can control my stress and despression.

   90    What do you think will happen to you if you return to that country(s)?

   If I still want to go back to my country my family will again forcing me to married to their choice.

   91    Did you experience harm in that country(s)?

   Noþ►   Go to Question 93

   Yes¨►   Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)

   92    Did you seek help within the country(s) after the harm?

   No¨►   Give reasons for why you did not try to seek help

   Yes¨►   Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)

   93    Did you move, or try to move, to another part of the country(s)to seek safety?

   No¨►   Give reasons for why you did not try to move to another part of the country(s)

   Yesþ►   Give details (including where you tried to move, why you were unable to move or where you moved to and what happened)

   I have tried to move to different state to Kuantan, but my family still keep on insist on their decision and forced me to return home and to be married. They looking for me until they tried the private investigator. To this extend they forcing me to get married as I am the only daughter in the family.

   94    Do you think you will be harmed or mistreated if you returrn to that country(s)?

   Noþ

   Yes¨►   Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)

   95    Do you think the authorities of that country(s) can and will protect you if you go back?

   Noþ►   Give details about why you think the authorities could not, or would not, protect you

   My situation is a personal matter so the law in my country they will not involved in family’s personal problem as long as didn’t involved the national safety and security.

   Yes¨►   Give details as to which authorities you think would protect you

   96    Do you think you will be able to relocate within that country(s)?

   Noþ►   Give details about why you are unable to relocate

   Nowadays, technology limit my move. Furthermore the highway that connect from each state make my movement not easy as they can find me in short time.

   Yes¨►   Give details as to where you could relocate

2. The Applicants provided the following further documentation in support of the review application:

(a)Translation of the applicant’s bond and bail bond after arrest with warrant dated [September] 2016, accompanied by facts of the case;

(b)Applicant’s statement dated 15 September 2022;

(c)Copy of Victorian marriage certificate for the primary and secondary applicants, dated [Date 2];

(d)Copy of Victorian birth certificates for the applicant’s two daughters, dated [Date 3] and [Date 4];

(e)Amendment made by the applicant to his provided statement due to a typing error, dated 19 September 2022.

Evidence Given at Tribunal Hearing

1. At the hearing before the Tribunal, the First Applicant gave evidence concerning his claims for protection that was largely consistent with his original claims, although he provided significant elaboration of the claims and was helpfully candid. In summary, the Applicant’s evidence in this respect was as follows:

   (a)In September 2016, the First Applicant attended a [business course] in the state of Terengganu, Malaysia. While attending the course, he met a woman, [Ms A], who he was acquainted with previously. She was also attending the business course. [Ms A] and the First Applicant quickly developed an intimate rapport with one another. Because she lived in the area, she invited him back to her house for dinner. They had sex and slept in the same bed that night. By doing so, the First Applicant had cheated on his then girlfriend, the Second Applicant, who is now his wife.

   (b)Embarrassed, the First Applicant tried to avoid seeing [Ms A] at the business course in the days that followed. However, towards the end of the course, [Ms A] invited the First Applicant to have dinner with her at the hotel where the course was being conducted. This ultimately led to the First Applicant and [Ms A] booking a hotel room at the same hotel that night. They went to the hotel room and had sexual intercourse.

   (c)Later that night, hotel staff and police who enforce Malaysia’s Islamic religious code gained entry to the hotel room and confronted the First Applicant and [Ms A] for engaging in extra-marital relations. They were arrested and subsequently charged. The First Applicant pleaded guilty in court on the basis that he would only be fined RM 2,500. However, the Syariah court also sentenced him to a term of imprisonment of one month. He immediately appealed and was granted bail pending the determination of the appeal. However, while on bail he fled Malaysia and came to Australia.

   (d)The Applicant fears that if he is forced to return to Malaysia, he will be incarcerated for at least one month for engaging in the extra-marital sexual relations.

2. The Second Applicant gave evidence that essentially corroborated the First Applicant’s evidence. She told the Tribunal that the First Applicant confessed to having engaged in extra-marital sexual relations shortly after he was formally charged. It was apparent to the Tribunal that the Second Applicant had forgiven him for his cheating. She genuinely fears that if the family is forced to return to Malaysia, the First Applicant will be forced to serve a term of imprisonment for engaging and extra-marital sexual relations.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about Malaysia on 29 June 2021 (‘the DFAT report’).[11] It includes the information that essentially corroborates the claims of the Applicants relating to religious laws. Those laws suggest that the First Applicant is likely to be sent to prison by Malaysia religious authorities for engaging in extra-marital sex.

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: Malaysia (29 June 2021).

Analysis of Evidence and Factual Findings

1. In this case, the Tribunal am satisfied of the account of events given by the First and Second Applicants. The First Applicant, in particular, was honest and forthcoming with all information sought by the Tribunal and has provided corroborating documentary evidence in support of his claims. The Tribunal is therefore satisfied that:

   (a)The First Applicant engaged in extra-marital sex in or about September 2016.

   (b)The First Applicant was sentenced to a term of imprisonment of one month by a Syariah Court for engaging in that extra-marital sex.

   (c)The First Applicant is likely to be arrested and imprisoned for that offence against sharia laws upon his return to Malaysia.

Do the Applicants Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who has a nationality, ‘is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to return to avail himself or herself of the protection of that country.’[12]

   [12] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[13] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee. This includes a requirement that persecution must involve ‘serious harm’ to the person who is seeking protection.[14]

   [13] ‘persecution, n.’, OED Online (Oxford University Press, March 2021, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: (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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

Determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[15] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[16] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[17]

First Applicant a Refugee

[15] MIEA v Guo (1997) 191 CLR 559, 574.

[16] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

[17] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. Sharia laws involving terms of imprisonment for breach of the religious moral code are not generally applied to all people in Malaysia. They tend to be applied only to followers of the Muslim faith, which includes the First Applicant. In this regard, the law that has been applied against the First Applicant is discriminatory and a product of systematic conduct on the part of Malaysia’s institutions. In the Tribunal’s view, incarceration for engaging in consensual extra-marital sex is a disproportionate response to the perceived moral vice that such conduct represents. Imprisonment in these circumstances amounts to significant harm. In the Tribunal’s view, the First Applicant is therefore entitled to Australia’s protection.

2. The Tribunal is satisfied that:

   (a)the First Applicant has a well-founded fear of being persecuted for reasons of him being a member of a particular social group, namely Muslims who engage in extra-marital sex; and

   (b)there is a real chance that he would be persecuted for that reason if he returned to Malaysia; and

   (c)the real chance of persecution relates to all areas of Malaysia.

3. Accordingly, the Tribunal finds the First Applicant to be a refugee for the purposes of s 36(2)(a) of the Act.

4. The Tribunal further finds the Second Applicant to be a member of the same family unit as the First Applicant.

DECISION

1. The Tribunal remits the applications for Permanent Protection (Class XA) (Subclass 866) visas for reconsideration with directions that:

   ·the First Applicant meets the criteria contained in s 36(2)(a) of the Migration Act 1958 (Cth); and

   ·the Second Applicant is a member of the same family unit as the First Applicant.

Dr Jason Harkess

Member