1725900 (Refugee)

1725900 (Refugee) [2024] AATA 1521 (8 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1725900
MEMBER:Fraser Robertson
DATE:8 February 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2024 at 9:32am

CATCHWORDS
REFUGEE – protection visa – Malaysia – political and economic conditions and financial hardship – outstanding loan repaid before tribunal hearing – new claim of fear of harm from ex-husband – drug use, physical violence, stalking and coercion – vague claims and inconsistent evidence – delay in raising claim about ex-husband – ex-husband and children not mentioned in application – original claims identical to other applicants, including brother and other people living at same address – admission of copying someone else’s application – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424AA(1)(b)(iii)
Migration Regulations 1994 (Cth), Schedule 2

CASES
ASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227
BBK15 v MIBP (2016) 241 FCR 150
BEH15 v MIBP [2019] FCAFC 184
Chan v MIEA (1989) 169 CLR 379
CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496
DQU16 v MHA [2021] HCA 10; 273 CLR 1
EIG17 v MICMA [2023] FedCFamC2G 804
Fox v Percy [2003] HCA 22; 214 CLR 118
GLD18 v MHA [2020] FCAFC 2
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MZAAJ v MIBP [2015] FCA 478
Randhawa v MILGEA (1994) 52 FCR 437
SZLVZ v MIAC [2008] FCA 1816
SZSPT v MIBP [2014] FCA 1245
SZTAL v MIBP [2017] HCA 34; 262 CLR 362

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
For these reasons, the decision under review should be affirmed.

BACKGROUND

The applicant, a [age]-year-old female from Malaysia, arrived in Australia [in] July 2017. She unsuccessfully attempted to lodge a protection visa application in early August 2017 before successfully applying two weeks later.
That application claimed that the applicant left Malaysia because of a "political and economic issue" and that if she returned to Malaysia she would experience "no job,cannot support my family and myself" [sic].

DELEGATE'S DECISION

The applicant was not invited to attend an interview with the Department. The delegate refused to grant the applicant a protection visa on 18 October 2017.
The delegate was not satisfied that the applicant was a refugee, reasoning that the harm feared by the applicant did not amount to persecution for the reason of one or more of the applicant's race, religion, nationality, membership of a particular social group or political opinion.
The delegate was not satisfied that the applicant was entitled to complementary protection. The delegate considered that applicant's claims did not involve 'significant harm', as that term is exhaustively defined in s 36(2A) of the Act.

REVIEW APPLICATION

The applicant applied to the Tribunal for review of the delegate’s decision on 23 October 2017. The applicant provided a copy of the delegate’s decision record and a copy of the notification of the refusal to the Tribunal. The applicant was unrepresented in respect of the review application.

Written invitation and response

On 20 January 2023, the Tribunal invited the applicant to provide additional information in support of the application for review. The applicant responded on or about 29 January 2023 indicating that she wished to update her claims for protection, adding:
"Based on first claims, i would like to add about my financial status in Malaysia regarding outstanding loan i can't pay."
No other additional information was provided.

HEARING

The applicant appeared before the Tribunal on 5 February 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

RELEVANT LAW

A summary of the relevant law and an extract of key provisions of the Act is set out in the attachment to this decision. I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report[1] as directed.[2]
[1]'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, 20210629092134 (2021 DFAT Report).
[2]See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

ANALYSIS, FINDINGS AND REASONS

The issues in this application are whether the applicant meets either:
(a)the refugee criterion for protection contained in s 36(2)(a); or
(b)the complementary protection criterion contained in s 36(2)(aa) of the Act.
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.[3] The Tribunal does not have any responsibility or obligation to specify, or assist an applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, their claims.
[3]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).

CREDIBILITY

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant’s credibility.
Any assessment of credibility I make must be legally reasonable.[4] Assessing a person's credibility and reliability is a difficult task.[5] The assessment should be careful and thoughtful, and processes conducted fairly and reasonably.[6] Inconsistencies in an applicant’s account may or may not be significant.[7] I must assess the significance of any inconsistency found to exist, the weight to be given to it, and carefully consider whether there is an acceptable explanation for the inconsistency such that it should attract little if any weight.[8]
[4]BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] (Rangiah, Perry and Bromwich JJ); see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 (Flick J).
[5]See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
[6]See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).
[7]ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[8]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [28] (Kenny, Griffiths and Mortimer JJ); approved in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 at [180] (Murphy, Mortimer and O’Callaghan JJ).
Caution is required when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution.[9] I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.[10] However, I am not required to uncritically accept any or all of the allegations made by an applicant.[11] I do not need rebutting evidence before I can find that a particular factual assertion is not made out.[12]
[9]See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[10]Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
[11]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[12]CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).

Country of nationality

The applicant claimed to be a national of Malaysia. The applicant travelled to Australia on a passport which appears to have been regularly issued by Malaysia. I am satisfied that Malaysia is the applicant’s country of nationality and the receiving country.

The applicant’s personal background

The applicant was born in [Year] in Pahang, Malaysia. The applicant has [siblings]. The applicant has a younger brother who also has an application for review presently before the Tribunal.[13] Her other siblings are in Malaysia.
[13]See applicant's email dated on or about 29 January 2023 (AWST).
When she was [Age] years old, the applicant commenced a relationship with a man, whom she would refer to interchangeably as her "husband" or "ex-husband". The applicant clarified that they were not actually married. The nomenclature used does not affect, in any way, my assessment of the applicant's credibility or reliability. I will adopt the language used by the applicant in these reasons. I do so without intending any disrespect or in any way suggesting that they were, as a matter of fact, married.
The applicant and her ex-husband have [children] together. They are between [Age]-years-old and [Age]-years-old. They presently live with the applicant's mother. I accept these matters.

Claims in protection visa application and prior to the Tribunal hearing

The claims made by the applicant in her protection visa application related to the economic and political situation in Malaysia. I did not understand those claims to be maintained at the hearing. However, the applicant did maintain a discrete aspect of her claims about the economic circumstances she would face on return to Malaysia. Those economic circumstances were claimed to arise from the feared pursuit and conduct of her ex-husband.
The claim to fear harm because of an outstanding loan was not maintained at the hearing. The applicant's evidence was that whilst she had previously borrowed money from a friend, she had repaid that money two or three years before the Tribunal hearing and did not claim harm on that basis.
The applicant did claim at the hearing to fear harm from, and on account of, her ex-husband. That claim had not been, and was not, raised prior to the hearing.

The applicant's ex-husband

The applicant claims that her ex-husband has a longstanding involvement in both using and selling illegal drugs. She also claims to have been a victim of family violence from him both during, and after, their relationship. The family violence claimed involved physical violence, stalking and coercion.

Past harm

The applicant claims that her ex-husband has been arrested, on multiple occasions, by the Royal Malaysian Police because of his drug related activity. The applicant claims that on one occasion she was arrested along with her ex-husband but was eventually released. The applicant did not claim to have been charged with any offence arising out of this or fear harm on this basis.
The applicant evidence about family violence was rather vague. In making that observation, I do not ignore the potential for trauma that often, but not always, impacts victims of family violence. During the hearing, the applicant make frequent reference to her ex-husband having "beat [her]". I sought to explore this with the applicant, using open questions, to provide an opportunity for the applicant to elaborate or provide more detail about the violence that she claims to have experienced at the hands of her ex-husband. The applicant did not do so.
When it became clear that the applicant was unwilling, or perhaps unable, to provide more detail about the family violence she claimed to have experienced, I directly asked the applicant about what she meant by "beat [her]". The applicant claimed that he would punch and kick her. Later in the hearing, the applicant also referred to being forced to have sex with him during their relationship.
The applicant only gave evidence of one injury occurring as a result. She claimed that following her husband having "beat [her]" on one occasion she had a sore neck. The treatment she sought was to attend a Chinese medicine provider. She had not attended hospital for any treatment. I note that the applicant claims that this injury flared up again in 2018 in Australia and she sought diagnostic radiology as a result.
The applicant claimed that around 2010 or 2011 she reported her ex-husband's violence to police. The applicant claimed that the police declined to assist her.
The applicant claims around this time she attempted to take on life by drinking bleach. She claims that she was prevented from doing so by her father, who made her promise not to do that. The applicant claimed that her father was very angry, obtained a knife and indicated he was going to see the ex-husband. However, the applicant claims that he did not follow through on that intention because the applicant promised to leave her ex-husband.
The applicant's evidence was that she separated from her ex-husband around 2012, when her youngest [Child] was [Age] years old. When asked about her life following separation, the applicant was not able to provide a detailed narrative. Instead, the applicant claimed in a very general way to have moved between cities a lot and worked in many different [Workplaces]. The applicant claimed that she moved around a lot because her ex-husband would locate her. The applicant claimed that when he would locate her, she would move to another city and obtain a job in a different [Workplace].
The applicant claims that on one occasion she was terminated from her employment because her ex-husband had attended her workplace and 'caused trouble' to 'beat her'. The applicant fears that will happen in the future if she is returned to Malaysia.

Future harm

The applicant evidence about her ex-husband's current circumstances changed during the hearing. At first, the applicant clearly claimed that her ex-husband was in prison. She explained that he had been in prison for about 2 years and was due to be released in a matter of months.
When asked about the source of her knowledge of her ex-husband's current circumstances, the applicant offered two explanations. She initially claimed that her ex-husband communicated with her children through an app, WeChat. The applicant claimed that the information was given to her children, who passed the information on to her mother. The applicant claimed that she was made aware by her mother.
Later in the hearing, the applicant claimed that her mother had communicated with her ex-husband and obtained the information directly from him, which had then been passed on to the applicant.
Even later in the hearing, perhaps anticipating inquiry about how it was that her ex-husband was communicating with his children and her mother, including by WeChat, the applicant claimed that her ex-husband was not actually in prison. Instead, she claimed that he had to report to Police daily in a particular city. Essentially, the applicant claimed that he was confined to a city on account of his reporting obligations. The applicant claimed that those obligations would cease in a few months.

Other evidence in relation to the ex-husband

The applicant claimed that her ex-husband had previously been subject to the death penalty. She claimed that he had avoided the death penalty because he had bribed corrupt police to avoid it. The applicant claimed that the police reduced the quantity of drugs found in his possession from "1 or 2 kilograms" to "grams". The applicant however also claimed that he was eventually released from this charge. She claimed that this occurred because her ex-husband had worked as a police informant. The applicant sought to explain his current incarceration by claiming that he had run out of money was unable to bribe the police.

Travel to Australia and protection visa application

The applicant claimed that when she came to Australia she initially came for a holiday but was told to stay by her younger brother who was already here.
The applicant initially claimed that she completed her own protection visa application. The applicant was insistent and unshakable in this regard. Her evidence was that she was the person who written the claims into the application. Her evidence was that she considered that the contents of the protection visa application were true and correct. The applicant, at least initially, denied having copied any part of the form from someone else.
I raised with the applicant several answers given her protection visa application which were inconsistent with her evidence before the Tribunal.
In her protection visa application, the applicant answered that she had never been married or been in a de facto relationship. The applicant explained that she answered no to that question because she did not think that if you lived with your parents that you could be in a de facto relationship with someone.
Had that answer existed in isolation, I may have been prepared to the applicant had a reasonable explanation for it. The concept of a 'de facto relationship' is a legal construct and one which may be unfamiliar to people who have not lived in Australia. That answer was not the only false or misleading aspect of the applicant's protection visa application.
The applicant's protection visa application did not refer to any children. The applicant sought to explain this omission by claiming that she did not include her children because she had decided to not include her husband on the application form.
I do not accept that is a reasonable explanation for a significant omission in the applicant's protection visa application. Moreover, in circumstances where Tribunal the applicant's 'true' claims for protection involved a fear of harm from her ex-husband, the father of her children, it is surprising that the applicant would have chosen to omit reference to both her ex-husband and her children from the protection visa application.
There were other concerns about the applicant's protection visa application. In her protection visa application, the applicant denied having any personal contacts here in Australia. At the hearing, the applicant conceded that her younger brother was present in Australia when she lodged her protection visa application. She did not know why she answered no to that question.

The protection visa application omitted all references to the applicant past employment in Malaysia. That omission was significant considering the claims then made about being unable to obtain employment. It was also significant in the context of the applicant having to claim to frequently move between cities and jobs to avoid harm from her ex-husband. The applicant's explanation for why she had not completed her employment details was that she only filled in the "easy questions" and she did not respond when the questions asked for something more.
The protection visa application also asks whether the applicant has ever been associated with a person who has been involved in criminal conduct. The applicant ticked no. When I raised this with the applicant, she claimed that she did not understand that the question referred to her ex-husband, only persons other than her ex-husband. The applicant did not articulate any rational basis upon which she held this view and I reject it. As I put to her at the hearing, her ex-husband was clearly "a person". The answer to this question is at odds with the applicant's evidence before the Tribunal.

Delay in raising present claims

The claims made by the applicant in relation to her ex-husband were not made by her at any time prior to the hearing before the Tribunal. Indeed, in response to correspondence from the Tribunal inviting her to add to update her protection claims the applicant's response was to indicate that:
"Based on first claims, i would like to add about my financial status in Malaysia regarding outstanding loan i can't pay."
I asked the applicant why she had not raised her actual claims for protection prior to the hearing. The applicant's response was to claim that before she came to the hearing, she had limited time to explain the real reasons that she came to Australia. She also, at times, appeared to suggest that the reference to being unable to obtain a job was a reference to her present claim. I do not accept that the vague and generalised claims about the economic circumstances and lack of employment was a reference to a claim to fear harm in any way related to her ex-husband.
I do not accept that the applicant has not had sufficient time to put her claims before the Tribunal. The applicant applied for her protection visa more than six years ago. This review application has been on foot for more than six years. The applicant was expressly invited to update her claims and responded to that invitation but failed to her present claims. Rather, she raised a claim about an outstanding loan which she conceded at the hearing she did not fear harm on account of. The applicant could not explain why she raised this claim which did not, on her own case, involve her having any fear of harm in Malaysia. Her willingness to raise this claim, in all the circumstances, causes me concern about her willingness to fabricate or present untruthful or non-genuine claims to the Tribunal.
The significant delay in raising the claims in relation to her ex-husband might suggest that those claims are either not genuine or have been embellished for the purposes of obtaining a favourable outcome.

Section 424AA

The claims made by the applicant in her protection visa application are expressed in an identical way to claims made by other applicants in proceedings before the Tribunal, including those made by her brother. Some of those applicants, but not all, also claimed to live at the same address as the residential address provided by the applicant in her protection visa application.
I put that information to the applicant pursuant to s 424AA of the Act. I explained to the applicant that the information was relevant because, subject to her comments or response, it may suggest the use of template claims for protection, which do not reflect the applicant's genuine claims or fears. I also explained that it may undermine her credibility and the credibility of her claims. I explained that it may suggest that the was prepared to provide incomplete, false or misleading evidence to the Department in support of his visa application.
I explained to the applicant that those conclusions, or any similar conclusion might result in the applicant's claims and evidence being disbelieved and a conclusion reached that she had fabricated all, or part of, her claims. Those conclusions, if made, would be a reason, or part of the reason, to affirm the decision under review.
I explained to the applicant the operation of s 424AA(1)(b)(iii). The applicant did not seek additional time before responding. The applicant responded claiming that she checked the information online and learned that she could apply for this visa and stay in Australia. She claims that she filled out her application with her brother. She did not resile from her claim to have completed the claims section of her protection visa application.
I discussed with the applicant my overall concerns about her credibility and reliability as a witness. I indicated that I would give the applicant an opportunity to consider whether she wanted to change her evidence in relation to the circumstances in which she came to lodge her protection visa application.
The applicant then claimed that she had, in fact, copied someone else's application. She conceded that, notwithstanding her earlier evidence, she had not found the information online but had copied the information from another person's application. She said that while she had found some information online, she did not include that information in her application. I asked the applicant why she had not been candid earlier, and the applicant's response was that she did not "think that much".
The applicant's willingness to be less than candid and honest with the Tribunal about the circumstances in which her protection visa application came to be lodged added to the already considerable concern I had about her credibility and reliability as a witness.

Country information

Credible country information indicates that, among other things Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line falling from 50 per cent in the 1960s to less than one per cent in 2021.[14] The 2021 DFAT report also indicates that poverty is more likely among the Malay ethnic group than people who are ethnically Chinese.[15]
[14]2021 DFAT Report, at [2.11].
[15]2021 DFAT Report, at [2.10].
According to Malaysian Department of Statistics’ August 2023 figures, the unemployment rate in Malaysia was 3.4 per cent[16], lower than the 3.7 per cent in Australia during the same period.[17] I further note that the government approved the introduction of unemployment benefits including allowances and support for training in October 2017.[18]
[16]See Ministry of Economy, Department of Statistics, Malaysia, Official Portal, OpenDOSM, Unemployment Rate, Australian Bureau of Statistics, ‘Unemployment rate at 3.7 per cent in August’, DFAT Report, [3.146].
The 2021 DFAT Report indicates that there are some concerns that police commonly return victims of family violence to the perpetrator as they perceive the issues as private family matters.[19] Country information indicates that in 2017, Malaysia passed laws to provide better protections for victims of domestic violence.[20] That included the broadening of definitions to include former spouses and family members.[21] Country information indicates that any kind of violence, physical or psychological, taking place between couples who already have their divorce granted absolutely by the court would also be regarded as domestic violence.[22]
[19]2021 DFAT Report, [3.128].
[20]2021 DFAT Report, [3.125].
[21]Who Is Protected Under The Domestic Violence Act 1994?', Mondaq, 11 October 2022 ( 2021 DFAT Report, [3.125].
[22]Who Is Protected Under The Domestic Violence Act 1994?', Mondaq, 11 October 2022 ( citing Section 2 Domestic Violence Act 1994.
The Domestic Violence Act 1994,[23] defines domestic violence in broad terms and includes causing fear, compelling an act or damaging property. The definition is as follows:
[23]Domestic Violence Act 1994, s 2 ( violence" means the commission of any of the following acts:
(a) wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury;
(b) causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;
(c) compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain;
(d) confining or detaining the victim against the victim's will; or
(e) causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim,
by a person against--
(i) his or her spouse;
(ii) his or her former spouse;
(iii) a child;
(iv) an incapacitated adult; or
(v) any other member of the family;
Victims of domestic violence can obtain protection orders which, if breached, attract a fine and/or prison sentence of up to one year.[24] Malaysians perceive the police as one of the most corrupt institutions in the country.[25] However, Malaysia is taking steps to combat corruption within the Police.[26] The Royal Malaysian Police are generally considered a professional and effective police force.[27]
[24]2021 DFAT Report, [3.125].
[25]2021 DFAT Report, [5.6].
[26]2021 DFAT Report, [5.6]-[5.9]; [2.17]-[2.20].
[27]2021 DFAT Report, [5.5].

Does the applicant face a real chance of serious harm from her ex-husband?

I found the applicant an unimpressive witness.
The inconsistencies between the applicant's evidence from her protection visa application and that which was given at the hearing is significant and cannot be ignored or overlooked. The same applies to the shifting and inconsistent evidence that the applicant gave during the hearing. The very significant delay in raising her claim to fear harm from her ex-husband is, in all the circumstances, something which I attach significant weight to.
Those matters individually cause me concern about the applicant's credibility. When weighted cumulatively they are so significant that I do not consider that any of the applicant's evidence, insofar as it related to her claims for protection, was credible, reliable or capable of being believed at all.
I consider that the applicant has belatedly raised a claim to fear harm on account of her ex-husband to obtain a protection visa and without any regard to the truth of those claims. I consider that she has invented and embellished her claims to obtain a visa.
Despite my very serious misgivings about the applicant's credibility, I accept that she is the mother of three children. Her evidence about having three children and her background prior to having those children was the only evidence that the applicant gave that I am comfortable accepting, and do accept, as being true.
However, I am not satisfied that her ex-husband is in prison or is effectively confined to a city by reporting obligations. The applicant has not satisfied me that she was a victim of family and domestic violence at the hands of her ex-husband. I do not accept that following their separation that the applicant's ex-husband sought her out, stalked her, caused problems at her various workplaces, sought to assault or beat her or engaged in any other of the behaviour claimed by the applicant.
I do not accept that the applicant's ex-husband pursued her from city to city, forcing her to leave her employment as a result. I do not accept that the applicant attended at her employment, assaulted her and caused her to be terminated from that employment. I do not accept that the applicant attempted to take her own life by drinking bleach.
I do not accept that if the applicant was to return to Malaysia now or in the reasonably foreseeable future, that her ex-husband would seek her out, harass her (whether at home or at work) or otherwise seek to interfere with the applicant's employment. I am not satisfied that the applicant is at risk of harm, let alone serious harm, from him.
I am not satisfied that there is a real chance that the applicant's ex-husband will inflict serious harm on the applicant if she was to return to Malaysia either now, or in the reasonably foreseeable future.
In relation to the 'balance' of the economic claim, I consider that the applicant was clear in her evidence that she did not actually have any fear of harm other than in relation to her ex-husband.
In so far as the applicant claimed fear harm on the basis that she would not be able to obtain employment, the applicant's evidence was that the difficulty in her obtaining employment arose from the actions that her ex-husband would take to find her, cause trouble and either see her terminated from her employment or act in such a way as to need the applicant to move again to hide from him. It was the frequent moves and inability to hold a job on that account that the applicant feared. Indeed, on the applicant's own case she has historically been able to obtain employment in numerous cities on numerous occasions.
I have already found that I am not satisfied that the applicant's ex-husband will act in that way. I am satisfied that the applicant would be able to obtain employment, likely in a [Workplace] as she has done previously, if she were to return to Malaysia.
Having regard to the examples of serious harm contained in s 5J(5), I am not satisfied that the applicant would face a real chance of serious harm now, or in the reasonably foreseeable future, if she were to return to Malaysia on account of either the economic circumstances and conditions that she would face, her ex-husband or a combination of both.

Reason for harm

Even if I were wrong in relation to whether the applicant faces a real chance of serious harm, the applicant also fails to meet the refugee criterion because the harm that she fears from her husband is not harm which is feared for the essential and significant reason of her race, religion, nationality, membership of a particular social group or political opinion.
The motivation of the applicant's ex-husband to harm the applicant is personal. It is not because the applicant is a woman or is a single mother or for any other reason. That is, the motivation on the part of the applicant's ex-husband to harm her is not because of her membership of any identifiable particular social group but rather because of the failure of their personal relationship.

Does the applicant have a well-founded fear on the basis of her borrowings?

As indicated above, the applicant's evidence was that whilst she had previously borrowed money from a friend, she had repaid that money some two or three years ago. When I attempted to explore why she made a claim of an outstanding loan, the applicant said that it might refer to 'unpaid credit for a mobile phone'. She was no more specific than that. She claims that the people she spoke to told her she could just tell the Tribunal at the hearing her new information.
I am not satisfied that the applicant has a well-founded fear of persecution on the basis of having borrowed money which she cannot repay.

DOES THE APPLICANT MEET THE REFUGEE CRITERION?

For the above reasons, I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Act.
I have also considered the applicant’s claims cumulatively. There is no feature of any of the above claims, to the extent that I accept them, that when considered cumulatively with one or more or all the other claims would lead me to conclude that the applicant has a well-founded fear of persecution within the meaning of s 5J.

The applicant does not meet the refugee criterion for protection

For the reasons set out above, I am not satisfied that the applicant is a refugee within the meaning of s 5H(1) the Act. It follows that the applicant does not meet the criterion in s 36(2)(a) of the Act.

DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

Having determined that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered the alternative criterion in s 36(2)(aa).
To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm.[28]
[28]Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Significant harm does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises by reason of the applicant’s removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[29] I am not satisfied that the applicant's ex-husband, or any other person, would intentionally seek to inflict mental harm on the applicant or intentionally seek to encourage the applicant to self-harm.
[29]GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [88]–[89] (Allsop CJ and Mortimer J); see also CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (Collier J); CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (Reeves J).

The applicant does not meet the complementary protection criterion

I have already found that the applicant does not face a real chance of serious harm for any reason now or in the reasonably foreseeable future. I am not satisfied that the applicant meets the complementary protection criterion.
Whilst I accept that the applicant does not wish to return to Malaysia, I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. The applicant is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act.
For the reasons set out above, I do not accept that the applicant is owed complementary protection or otherwise meets the complementary protection criterion in s 36(2)(aa) of the Act.

CONCLUSION

The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).
I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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

The decision not to grant the applicant a protection visa is affirmed.

Fraser Robertson
Member

ATTACHMENT - Relevant Law

Criteria for the grant of 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 (Cth) (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, they are a person in respect of whom Australia has protection obligations either:
(a)under the ‘refugee’ criterion in s 36(2)(a);
(b)on other ‘complementary protection’ grounds; or
(c)because they are 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.[30]
[30]Migration Act 1958 (Cth) s 5H(1)(a).
A person has a well-founded fear of persecution if:[31]
[31]Migration Act 1958 (Cth) s 5J(1).
(a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (refugee nexus);
(b)on return to the country of their nationality, there is a real chance they would be persecuted for one or more of those reasons; and
(c)the real chance of persecution relates to all areas of the relevant country.
A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%.[32]
[32]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a),[33] that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[34] Further, the persecution must involve serious harm to the person[35] and systematic and discriminatory conduct.[36]
[33]Namely, race, religion, nationality, membership of a particular social group or political opinion.
[34]Migration Act 1958 (Cth), s 5J(4)(a).
[35]Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[36]Migration Act 1958 (Cth), s 5J(4)(c).
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–5LA, 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (the ‘complementary protection criterion’).[37]
[37]Migration Act 1958 (Cth) s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]–[5] (Kiefel CJ, Nettle, Gordon JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[38]
[38]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A).[39] A person will suffer significant harm if they will:
[39]Migration Act 1958 (Cth), s 5(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
(a)be arbitrarily deprived of their life;
(b)have the death penalty carried out on them;
(c)be subjected to torture;
(d)be subjected to cruel or inhuman treatment or punishment; or
(e)be subjected to degrading treatment or punishment.
‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are defined in s 5(1) of the Act. Those definitions are set out in full in the attachment to this decision. Sections 36(2A)(d) and (e) deal with significant harm comprised of "cruel or inhuman treatment or punishment" or "degrading treatment or punishment". In that regard "cruel or inhuman treatment or punishment" means:
(a)an act or omission by which, among other things, "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".
The remaining type of significant harm, "degrading treatment or punishment", means "an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable".
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.[40] These arise where:
[40]Migration Act 1958 (Cth), s 36(2B).
(a)it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
(b)the applicant could obtain, from an authority of the country, protection such that there would not be a real risk[41] that the applicant will suffer significant harm; or
[41]The level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (Lander, Jessup and Gordon JJ).
(c)the real risk is one faced by the ‘population of the country generally’ and is not faced by the applicant personally.
The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[42]
[42]BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 at [32]; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J); MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478.
Section 36(2B)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.

Mandatory considerations

I must take 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[43]
[43]See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.
…

[2024] AATA 1521

8 February 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction