1730818 (Refugee) - [2024] AATA 937

1730818 (Refugee) [2024] AATA 937 (9 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1730818
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Jessica Henderson
DATE:9 January 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 January 2024 at 4:24pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – economic situation – political opinion – supporter of the Coalition for Clean and Fair Elections – race – Chinese ethnicity – racial discrimination – applicant does not have subjective fear of returning to Malaysia – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Malaysia. She applied for the visa on 26 May 2017.
The applicant appeared before the Tribunal on 2 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant arrived in Australia on [date] March 2015 on a UD-601 visa. On 28 May 2015 the applicant applied for a student visa, which was granted on 25 June 2015.
The applicant left Australia on [date] January 2017.
The applicant returned to Australia on [date] March 2017 on a UD-601 visa.
On 29 May 2017 the applicant applied for a protection visa. The reasons given by the applicant in her application were summarised by the delegate in the following terms:
• Applicant claims she left Malaysia because she was abused by her stepfather
• The applicant claims that if she returns to Malaysia she will be Psychological, Mental and Emotional.
• The applicant claims that the harm she experienced was Psychological, Mental and Emotional.
• The applicant claims that she did not seek help because her friend [Mr A] suggested for her stay in Australia.
The applicant attended an interview with the Department on 8 November 2017. A copy of the interview was not provided to the Tribunal. The delegate reported in the reasons for decision that during the interview the applicant claimed to have left Malaysia because of racial discrimination because she is ethnic Chinese. She also reported the applicant’s statement that the claims written in the 866C form were incorrect. The applicant subsequently amended her 866C Form by and to reflect this.
The delegate did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1730818 (Refugee)

Details

AGLC: 1730818 (Refugee) [2024] AATA 937
Case: [2024] AATA 937
Decision Date: 9 January 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Malaysian national. The applicant had arrived in Australia in March 2015 and, after a period of study and departure, returned in March 2017, subsequently applying for the visa. The delegate's decision, which was under review, was based on the applicant's claims regarding economic hardship and racial discrimination due to her ethnic Chinese background in Malaysia. The applicant's initial claims, which included abuse by her stepfather and psychological, mental, and emotional harm, were reportedly contradicted by her during an interview with the Department, where she stated the claims in her application form were incorrect and instead cited racial discrimination as the reason for leaving Malaysia.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa, specifically whether she had a well-founded fear of persecution for a refugee nexus reason or qualified for complementary protection. The Tribunal was required to consider the applicant's claims of harm, the nexus to protected characteristics, and the availability of protection in Malaysia, in accordance with sections 36 and 5H of the Migration Act 1958 (Cth) and relevant guidelines.

The Tribunal affirmed the delegate's decision, concluding that the applicant did not meet the criteria for a protection visa. While the applicant provided evidence of involvement in protests in Malaysia in 2013, including an injury sustained during a protest and subsequent difficulties in obtaining housing and employment, the Tribunal found that she did not have a subjective fear of returning to Malaysia. Furthermore, the Tribunal noted the significant delay in the applicant's application for protection in Australia, having arrived in March 2017 and applied in May 2017, and the circumstances surrounding the completion of her application by an agent. The Tribunal found no basis for protection under either the refugee or complementary protection provisions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant appeared before the Tribunal on 2 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.BACKGROUND The applicant arrived in Australia on [date] March 2015 on a UD-601 visa. On 28 May 2015 the applicant applied for a student visa, which was granted on 25 June 2015. The applicant left Australia on [date] January 2017. The applicant returned to Australia on [date] March 2017 on a UD-601 visa. On 29 May 2017 the applicant applied for a protection visa. The reasons given by the applicant in her application were summarised by the delegate in the following terms:• Applicant claims she left Malaysia because she was abused by her stepfather• The applicant claims that if she returns to Malaysia she will be Psychological, Mental and Emotional.• The applicant claims that the harm she experienced was Psychological, Mental and Emotional.• The applicant claims that she did not seek help because her friend [Mr A] suggested for her stay in Australia. The applicant attended an interview with the Department on 8 November 2017. A copy of the interview was not provided to the Tribunal. The delegate reported in the reasons for decision that during the interview the applicant claimed to have left Malaysia because of racial discrimination because she is ethnic Chinese. She also reported the applicant’s statement that the claims written in the 866C form were incorrect. The applicant subsequently amended her 866C Form by and to reflect this. The delegate did not consider the applicant’s original claims in the reasons for decision. The delegate’s decision was based on the applicant’s economic and racial claims. The delegate found that the economic climate of Malaysia affected the population generally, and that the applicant would not face serious or significant harm because of her race.CRITERIA FOR A PROTECTION VISA The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

Evidence

Evidence Before The Court

The issue in this case is whether the applicant meets the criteria for a protection visa either because she has a well-founded fear of persecution for a refugee nexus reason or pursuant to the complementary protection provisions. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Evidence during the hearing The Tribunal asked the applicant about the circumstances in which her protection visa application had been completed. She said that the applicant form had been completed by an agent, whose name she did not recall. She said that she paid fore than $3,000 for the agent’s services, but that she had not met them in person; she had given instructions by telephone. She had been in Australia for about two years when she made contact with the agent, whose contact details she had obtained from a friend. The applicant provided details about her background in Malaysia during the hearing. Her parents are married and she grew up with both of them. Her dad was a [Occupation 1] and her mother a [Occupation 2]. She and her sister both went to primary and high school. The classes were taught in the Malaysian language, in which she is fluent. Outside school hours she worked at a shopping centre. Her sister also completed school and is now an [Occupation 3] for a business and is married to a Chinese-Malaysian technician. The applicant said that her sister had better academic results because the applicant had to work after school. Her family lived in one room and couldn’t afford to pay her school fees without her work. Her mother paid for her sister but couldn’t pay for both of them. The applicant said she met her husband in 2009, and they married on Valentines Day in 2015. The had a child, a son, on [date] this year. They travelled to Australia together to improve their English. After the applicant finished her [qualification] they returned to Malaysia, but found it hard to get work, notwithstanding the improvement in English. The applicant recounted details of protests that she had been involved in during 2013. The applicant showed a significant degree of enthusiasm and passion when discussing these events. The applicant particularly recalled a protest in 2013, when a large group of people gathered together and wore black shirts. The government arranged policemen to shoot bullets and use a fire engine to hose people down. The applicant said that more than 100 people were arrested and more than a 1000 were injured. The applicant says that she was injured; a lot of people were pushing and she was caught in the crush, injuring her arm. The applicant says that she has been watched since then, because she played a leadership role in the movement. She says that she had to stay inside in Malaysia until the situation calmed down. In the following two years she was unable to apply for a home loan or government housing. She says that it was difficult for her to find a job and impossible for her to buy non-government properties.

Decision

Reasons for decision

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 Tribunal affirms the decision not to grant the applicant a protection visa.Jessica HendersonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 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 The issue in this case is whether the applicant meets the criteria for a protection visa either because she has a well-founded fear of persecution for a refugee nexus reason or pursuant to the complementary protection provisions. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Evidence during the hearing The Tribunal asked the applicant about the circumstances in which her protection visa application had been completed. She said that the applicant form had been completed by an agent, whose name she did not recall. She said that she paid fore than $3,000 for the agent’s services, but that she had not met them in person; she had given instructions by telephone. She had been in Australia for about two years when she made contact with the agent, whose contact details she had obtained from a friend. The applicant provided details about her background in Malaysia during the hearing. Her parents are married and she grew up with both of them. Her dad was a [Occupation 1] and her mother a [Occupation 2]. She and her sister both went to primary and high school. The classes were taught in the Malaysian language, in which she is fluent. Outside school hours she worked at a shopping centre. Her sister also completed school and is now an [Occupation 3] for a business and is married to a Chinese-Malaysian technician. The applicant said that her sister had better academic results because the applicant had to work after school. Her family lived in one room and couldn’t afford to pay her school fees without her work. Her mother paid for her sister but couldn’t pay for both of them. The applicant said she met her husband in 2009, and they married on Valentines Day in 2015. The had a child, a son, on [date] this year. They travelled to Australia together to improve their English. After the applicant finished her [qualification] they returned to Malaysia, but found it hard to get work, notwithstanding the improvement in English.