1726763 (Refugee)

[2023] AATA 2433

1726763 (Refugee) [2023] AATA 2433 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726763

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Paul Noonan

DATE:29 June 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 29 June 2023 at 12.29pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – demonstrator against corruption – participated in one demonstration for women’s rights – no evidence of harm – family violence from ex-husband and interim intervention order – access to effective state protection available – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

ABAR15 v MIBP (No 2) (2016) 242 FCR 11

MIAC v MZYYL (2012) 207 FCR 211

MIAC v SZQRB [2013] FCAFC 33

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 27 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 26 May 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is owed protection by Australia.

3. The applicant appeared before the Tribunal on 5 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

4. For the purposes of her appeal to the Tribunal, the applicant supplied the Tribunal with a copy of the delegate’s decision.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    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 the country of nationality and the receiving country.

    The applicant’s background

12. According to her passport the applicant was born in [year] in Selangor, Malaysia. She declared in her claim for protection that she is ethnically Malay and a Muslim. She did not provide details of her past employment in Malaysia. In her written claim (in summary) she stated that she left Malaysia because she was active in political issues and demonstrated against corruption. She is against the government and she is a “dangerous suspect”. She fears that if she is required to return she will be imprisoned. When she demonstrated the authorities tried to catch her and drag her into prison. She cannot seek protection as it is the authorities that she fears harm from.

    The Tribunal hearing and conclusions

13. The Tribunal noted the applicant’s submissions in the hearing that she has worked as a volunteer in various charities and that she has submitted a number of character references with respect to her volunteer work and paid employment. The applicant submitted that she has her mother and [number] children, [number] of whom are at university and the others still at school, and her sister living in Malaysia. The younger children live with her mother. She has no partner in Australia. She divorced in [year] from her ex-husband. She had faced family violence from her ex-husband. Since then she raised her children by herself. She sends money back to Malaysia from her earnings in Australia to support her children. Before coming to Australia she worked in the public service in the [specified department] as [an Occupation 1]. This was a full-time job. She had decided to come to Australia to improve her life and gain peace of mind. She had continued to have trouble with her ex-husband after the divorce as he had tried to take custody of her children and as such she had not been able to get her children to Australia to be with her. She has a Court ordered interim intervention order against her ex-husband which she believes keeps her safe from him. She submitted that they were also work colleagues and her ex-husband would still seek to disrupt her life.

    Fear of harm from the applicant’s ex-husband

14. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c). The Tribunal accepts that the applicant is a member of a particular social group being females fleeing domestic violence. The Tribunal accepts that the persecution involves serious harm that constitutes systematic and discriminatory conduct from her ex-husband.

15. However, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

16. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

17. The Tribunal noted and discussed that the applicant’s evidence reflects that she has obtained an interim protection order, which was effective, and divorce with respect to her ex-husband, which reasonably may reflect that the Malaysian authorities were willing and able to provide her with protection and as such it may be considered that she would be able to do so again should she require it in the future. The applicant submitted that nevertheless it was too hard for her with respect to her ex-husband. The Tribunal discussed with the applicant that she may not be taken to be a refugee or to require complementary protection where the authorities are willing and able to provide effective protection to her. The Tribunal also discussed in this context that DFAT country information reflects that the authorities have in recent years introduced strengthened protections for victims of domestic violence, including for former spouses, with protection orders applying and violations incurring penalties of up to six months’ prison and two years for multiple violations.[1]

    [1] DFAT Country Information Report, Malaysia, 29 June 2021 at [3.125]

18. In considering the issue of State protection for the applicant with respect to her ex-husband the Tribunal also notes DFAT advice that there are still significant problems with respect to domestic violence in Malaysia. This includes difficulties for women in leaving family settings safely and in gaining adequate State protection.[2] However, it is clear that in this particular case the applicant has been able to successfully access protection from the State in the form of protection orders and divorce which, according to her own evidence, made her feel safe from her ex-husband. The Tribunal considers that the applicant has demonstrated a significant ability to access and utilise the resources of the Malaysian State in this regard and that this past history strongly reflects that she would be able to access the same level of protection in the future from the authorities should she require it. The applicant raised no reasons why she would not be afforded the same level of protection she was afforded in the past should she require it in the future. The Tribunal finds as per s 5LA that the Malaysian authorities are willing and able to provide the applicant with protection that consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system, that the applicant can access the protection and that the protection is durable, such that the applicant is taken not to have a well-founded fear of persecution.

    [2] Ibid at [3.133]

    Political opinion / corruption claim

19. The Tribunal then asked the applicant to clarify her concerns with respect to corruption. The applicant stated that she demonstrated with a group of women, which she submitted was considered a breach of the rules for a public servant such as herself. She gave no evidence that she had suffered any harm at this demonstration from the authorities. She stated that they were demonstrating for women’s rights. She participated in only one demonstration. The Tribunal noted that in her original claim she stated that she protested against political corruption. The applicant then responded that part of the demonstration was also against general corruption. The Tribunal noted that since she left Malaysia there have been several changes in government.[3] The Tribunal discussed with her why she has concerns that the authorities would have any knowledge or be adversely interested in her in any way for reason of her participation in a single demonstration for women’s rights many years ago. The applicant simply stated that she holds this fear as an ex-public servant. However, it is clear that the applicant has never been involved in politics in Malaysia and her concerns with respect to corruption are only with respect to high level political corruption. The Tribunal is satisfied that the applicant has never suffered past harm for reason of corruption in Malaysian politics, her political opinion or her status as a public servant who participated in a single women’s rights demonstration and rejects her written claims that she is “a dangerous suspect”. The Tribunal is not satisfied that the applicant has any form of adverse profile that will result in her being targeted for persecution by the authorities or anyone else for any reason related to her opposition to corruption, her political opinion or her status as an ex-public servant who participated in a single women’s rights demonstration many years ago in Malaysia. As such the Tribunal does not accept that there is a real chance of serious harm to the applicant for reason of corruption in Malaysian politics should she be required to return to Malaysia either now or in the reasonably foreseeable future.

    [3] Ibid at [2.2]

    Complementary protection

20. The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.

21. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if she returns to Malaysia related to her opposition to corruption or her political opinion in Malaysia. In MIAC v SZQRB [2013] FCAFC 33, 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 Refugees Convention definition.

22. With respect to the real risk of significant harm to the applicant from her ex-husband, under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].

23. The Tribunal is satisfied that the applicant did not suffer physical harm once she had divorced from her ex-husband and she felt safe due to the issuance of a protection order by the authorities for several years while residing in Malaysia. Overall, the Tribunal is satisfied that the applicant could again access protection from the Malaysian authorities should she require it with respect to her ex-husband and that, upon obtaining protection from the authorities, there would no longer be a real risk of significant harm to the applicant from her ex-husband.

24. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are 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 the applicant will suffer significant harm.

    CONCLUSIONS

25. 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).

26. 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).

27. 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

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

    Paul Noonan
    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.

    …