1724413 (Refugee)

[2023] AATA 2434

1724413 (Refugee) [2023] AATA 2434 (25 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724413

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:25 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 June 2023 at 11:00am

CATCHWORDS
REFUGEE – protection visa – Malaysia – economic conditions – need for money during divorce and custody proceedings and to support child – intention to find higher-paying work in Australia – apprehension about seeing ex-husband, but in communication regarding daughter and no fear of harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIAC v SZQRB [2013] FCAFC 3

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 28 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 7 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection.

3. The applicant appeared before the Tribunal on 15 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 of Home Affairs, and 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

10. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Malaysia and she has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as her country of nationality and the receiving country.

    Credibility

12. I consider that the applicant gave her evidence in a frank and truthful manner and I accept her evidence in full.

    The applicant’s personal background

13. The applicant is a [age]-year-old woman from Kuching in the state of Sarawak, Malaysia. She is divorced with an [age]-year-old daughter who lives with her former husband in Kuching. Also living in that city is the applicant’s father, while the applicant’s mother and younger brother are currently living in Australia.

14. The applicant graduated from secondary school. She subsequently worked for [a] section of a [business] in Kuching for a number of years. She gave evidence that she left that position in the hope of finding a higher paying job elsewhere in Kuching but was unable to do so.

15. She first travelled to Australia in August 2016, staying only a few days for sightseeing purposes before returning to Kuching. She returned to Australia in April 2017 as the holder of a visitor visa and has not departed since.

16. At hearing she gave evidence that before coming to Australia, she separated from her former husband after a fierce verbal argument. He accused her of having an affair and waved a knife around, causing her to call her father and ask him to come around. She decided to divorce her husband but the law in Malaysia requires a two-year waiting period before a divorce becomes official. She needed for a higher paying job to support herself during that period and applied for many jobs in Kuching, but was unable to secure a higher paying job.

17. She had heard from other people that things were better in Australia and she travelled here intending to look for work. Later she thought she would apply for a student visa but she was unable to pay the fees. A person helping her suggested she apply for the protection visa which would allow her to get a bridging visa and work or study. They helped her apply for the visa and it wasn’t until much later that she understood what kind of visa she had applied for and the consequences of that.

18. Since she has been in Australia she has been working on farms. She has also been undertaking studies in [subject] and will complete those studies in a couple of months. Her wish is to stay in Australia and work legally and be able to occasionally return to Malaysia to see her family. She needs to earn more money so that she can support her daughter in Malaysia and get custody of her daughter when she returns.

19. She saved up money in Australia to apply for a divorce and that divorce has been granted. She sends money from Australia back to her former husband in Malaysia to be used to support her daughter’s expenses and education and communicates with her former husband for that purpose.

20. The Tribunal accepts each of the above matters to be true.

    The applicant’s protection claims

21. In the visa application, the applicant stated that she left Malaysia because of political and economic issues. If she returns, she will not be able to support her family or herself. In response to a question asking if she had experienced harm in Malaysia, she stated that she had no job and could not support her family or herself. In response to a question asking if she had sought help after that harm, she stated her friend had suggested she come to Australia. In response to a question asking if she had moved to another part of Malaysia to seek safety, she stated that she had applied for many jobs in Malaysia but failed because of the economy and political issues in Malaysia. She does not think she could relocate within that country, because the political and economic issues happen across the whole of Malaysia.

22. In November 2022, the applicant was invited to add to or update her claims for protection. In a response dated 28 November 2022, the applicant indicated that she did not wish to add to or update her claims for protection or provide any other information in her protection visa application.

23. At hearing the applicant gave evidence that was broadly consistent with her statements in the visa application, being in essence that she came to Australia because she believed she could earn more money here and she needed a higher income to support herself and her daughter after separating from her former husband.

24. At the Tribunal hearing I explained to the applicant that a refugee was a person with a well-founded fear of persecution in their own country, which meant the Tribunal had to be satisfied there was a real chance she would be subjected to serious harm for reasons of her race, religion, nationality, membership of a particular social group or political opinion. The applicant said that she hadn’t understood the criteria for a protection visa until after she made the application.

25. When I put to the applicant that she didn’t appear to fear harm from anyone in Malaysia, she agreed that was true. She said the only factor was her ex-husband, who she believes might want to get remarried because he is a very traditional and conservative man. When I asked if she had conversations with her ex-husband to that effect she said she had not. She said that she was in communication with her ex-husband for the limited purpose of arranging financial transfers for the support of their daughter, but that she had unilaterally sought the divorce and they had not spoken of it. She said that now she was officially divorced he has no right to ask her to go back to him and she did not have to fear him if she returned. She gave evidence that if she couldn’t remain in Australia, she would return to Kuching and live with her father. She would like to get a visa allowing her to work legally in Australia and enabling her to return to Malaysia occasionally to see her family.

26. I accept the applicant is apprehensive about returning to Kuching and seeing her former husband, because she believes he may wish to resume their relationship following their recent divorce. I do not accept there to be a real chance he will try to harm her if she returns, noting the applicant’s evidence that now that they are officially divorced he has no right to ask her to go back to him and she did not have to fear him if she returned. I also note that the applicant’s evidence that her original plan after the separation was to find work that paid enough to allow her to support herself and her family in Kuching. She travelled to Australia only after she was unable to find high enough paying work in Kuching and for the express purpose of earning a higher income. For these reasons the Tribunal is not satisfied that there is a real chance the applicant will be harmed by her former husband if she returns to Kuching, now or in the reasonably foreseeable future.

27. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[1]  For the same reasons the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will be subjected to significant harm by her former husband as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

    [1] MIAC v SZQRB [2013] FCAFC 33 at [246], [297], [342].

28. At hearing I discussed with the applicant that economic conditions in a person’s home country do not generally enliven Australia’s protection obligations because the refugee assessment is directed at harm directed at a person for reasons of their race, religion, nationality, membership of a particular social group or political opinion and complementary protection obligations are concerned with intentional acts of harm by other persons. The applicant said she understood and did not suggest that any economic harm she would face on return to Malaysia was for any of these reasons or that she would be harmed by the intentional acts of any other person.

29. The Tribunal accepts that the applicant came to Australia with the intention of working to support herself and her family and in the hope of obtaining further work-related qualifications. The Tribunal further accepts her evidence that if she returns to Malaysia, she will be unable to earn as much as she does in Australia. However the Tribunal finds that the economic harm feared by the applicant is not for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or political opinion. Therefore, that harm does not meet the criteria set out in s 5J(1)(a) of the Act.

30. The applicant does not suggest that any economic harm she might suffer in Malaysia would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor does she suggest that she will be subjected to the death penalty in Malaysia for any reason. For these reasons the Tribunal does not accept that any economic harm to which the applicant may be subjected if returned to Malaysia would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A).

    CONCLUSIONS

31. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

32. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

33. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Alison Murphy
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person 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 avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …