1732781 (Refugee)

1732781 (Refugee) [2024] AATA 618 (15 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1732781

COUNTRY OF REFERENCE: Malaysia
MEMBER:Mark O'Loughlin
DATE:15 January 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2024 at 1:09pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – women – victim of human trafficking – physical and sexual assault – fear of killing – state protection – periods of unlawful residence – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

SZATV v MIAC (2007) 233 CLR 18

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

APPLICATION FOR REVIEW

1. On 12 December 2017, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.

2. The applicant signed her PVA (Protection visa application) on 16 September 2017 and it was received by the department on the 29^th of that month.

3. The delegate refused to grant the visa on the basis that there are adequate protection measures available to the applicant in Malaysia and she is not therefore owed protection by Australia.

4. The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 7 September 2023 to give evidence and present arguments.

5. The Tribunal was assisted by an interpreter in the Malay language.

CRITERIA FOR A PROTECTION VISA

6. The relevant 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 must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.

7. There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.

8. S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that she is.

9. The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).

Therefore, to succeed the applicant must satisfy either:
a.s36(2)(a)- the “refugee criterion”, or
b.s36(2)(aa)- the “complementary protection” criterion.

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, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.

Claims

The applicant set out her claims in the PVA she signed on 16 September 2017 at her answers to questions 88 to 96. The Tribunal summarises the claims in the PVA in this way:

a.Her brother tried to sell her to a gangster from [Country 1] to satisfy his debt.
b.Her brother would always abuse her for no reason and tried to kill her many times.
c.In 2013 he tried to burn her with fire.
d.He hit her with an iron.
e.Her mother could not help because she was also scared of the applicant’s brother.
f.In 2014 her cousin planned to come to Australia, so her mother told the cousin to take the applicant with her to escape the applicant’s brother’s efforts to kill her or sell her to gangsters.
g.In 2015 she was planning to return to Malaysia and had bought a ticket, but she spoke to her mother on the telephone and her brother, who was in the background, said he would find her and kill her if she returned.
h.She had tried to report her brother to the police when she was in Malaysia, but they said she should sort it out with her family. The reason the police would not help is because her stepfather was an officer at that police station.
i.She tried to avoid her brother by moving to Kuala Lumpur, but her brother called her on her mother’s phone and said he would kill her mother if the applicant did not come home.
j.The Malaysian police are corrupt, and her brother has been involved in police corruption because of drugs. Also, her stepfather was a police officer.
k.If she moved to another state, her brother would find her because he has many friends.

The applicant was interviewed by a representative of the Department on 4 October 2017 and expanded on her claims. She had a solicitor from Refugee Advice and Casework Service present at the interview with her. The representative provided written submissions to the Department dated 18 October 2017 in which the applicant’s claims for protection were set out in part I on page 2.
The Tribunal summarises the expanded claims in this way:
a.The applicant has been subjected to violence and abuse at the hand of her brother since 2005, after her father died.
b.The violence was physical, emotional, and psychological.
c.The violence and abuse increased when he became involved in drugs and guns.
d.On one occasion he beat her in the head with an iron leaving her bleeding.
e.He also doused her in petrol and threatened to set fire to her. She only escaped because some friends came to the house.
f.In 2013, when she was [age], a group of men entered her home claiming her brother had sold her to them to satisfy a debt he owed their gang. The debt related to drugs, guns, and other illegal activities.
g.The applicant’s mother refused to hand her over and her cousin came and threatened to call the police.
h.The men left saying they would return for her.
i.The applicant then went with her mother to the police station to report the incident. The police refused to help and told them to resolve the matter direct with the applicant’s brother.
j.The men returned to the house at about 8.00 or 9.00 pm that evening.
k.The applicant’s cousin said it was not safe for her and took her to his house.
l.She stayed with him for some time, then he returned her to her mother’s house. Her brother found her and threatened her cousin.
m.The applicant’s brother beat her with various items.
n.The applicant went to her grandmother’s house. Her brother would come each night and abuse her through the security windows of her grandmother’s house.
o.The applicant feared her presence was a danger to her grandmother so she returned to her home where she was again subjected to serious violence by her brother.
p.She stopped going to school for a period and when she recommenced, she would go in a friend’s mother’s car.
q.She went to school irregularly because she was scared of being kidnapped by the gang.
r.Her cousin and mother decided it was too dangerous for her to stay in Malaysia and her cousin arranged for her to come to Australia to join him and his wife.
s.The applicant arrived in Australia on a tourist visa in October 2014 when she was about [age] years old.
t.The relationship with her cousin broke down and she had to leave. She went to [Town 1] in Victoria with some friends. She worked unlawfully picking fruit to support herself.
u.In 2015 friends were leaving Australia and she felt scared to remain on her own so she decided to return to Malaysia in the hope that things there might have changed.
v.The applicant changed her mind after speaking to her mother on the phone and being told not to come as it was still not safe. The applicant’s brother threatened to kill or harm her during the call.
w.The applicant was still speaking to her mother at the time of the submissions but has had to change her contact details because her brother continues to threaten to kill or harm her.
By email of 12 August 2023 the applicant provided pre-hearing information to the Tribunal which included further information about her claims for protection. The Tribunal summarises the further information this way:
a.The applicant is the victim of rape and of human trafficking by her own family.
b.She had tried seeking help from her teachers but they were too afraid of her family.
c.She still has a scar from one of her brother’s unsuccessful attempts to kill her.
d.His brother wanted her to sell drugs.
e.She has been raped by her cousin. When she told her mother her mother did not believe her.

Submissions

In addition to the claims set out above, the submissions from the Refugee Advice and Casework Service of 18 October 2017 address further matters and direct the department to items of country information.
The Tribunal has considered the submissions which comprise about 28 pages.
The Tribunal accepts that the groups suggested in the submissions, such as “Women subject to domestic violence in Malaysia” could be “particular social groups” for the purposes of s 5L of the Act.
The Tribunal further accepts that the harm the applicant at the hands of her brother that the applicant claims to fear is likely to come within the definition of “serious harm” at s5J(5) as the submissions assert.
The Tribunal has considered the submissions in relation to “well founded fear” at page 7 of the submissions. These submissions are largely directed at how the Tribunal should weigh the facts.
The submissions about Complementary protection direct the Tribunal to items of information and authorities to support the proposition that “…forcible or deceptive recruitment of women or minors for the purposes of forced prostitution or sexual exploitation” could be the basis for protection obligations. The Tribunal accepts this proposition.
The submissions suggest the applicant was prejudiced in the Departmental interview by a range of factors including the late retention of legal help, the applicant’s emotional reaction to the interview, the stress of detention and some other factors.
The submissions attach a statement of the applicant intended to address the shortcomings of the interview and to which the Tribunal has had regard[1].
[1] Further Statement of [the applicant], 8 pages, 56 paragraphs.
The Tribunal observes that the submissions relating to the applicant’s young age and vulnerability at the time of the Departmental interview do not generally appear to apply now, about 6 ½ years later.
The applicant submits that the applicant’s delay in applying for protection should not count against her credit because of her age, maturity, gender, past experience of trauma, and mistrust of authorities which are contributing factors to the delay.
The Tribunal has taken those considerations into account in assessing the applicant’s evidence.
The submissions address allegations apparently made to the Department about the applicant. The source and nature of those allegations is not available to the Tribunal and no regard is had to them.
The submissions make reference to country information relating to a police crackdown on gang activity in Malaysia. The Tribunal accepts that criminal gangs are still active in Malaysia. The question the Tribunal must ask itself is not whether that is so but whether the applicant faces relevant harm because of gang activity.
The same observation may be made in relation to domestic violence in Malaysia. The Tribunal is satisfied that it is a problem but must ask itself whether it is a problem that the applicant would face if she returned.
The submissions assert that the risk to the applicant exists throughout Malaysia[2].
[2] Submissions RACS 18 October 2017 part VI, pge 24.
The submissions repeat the applicant’s assertion that her brother was able to find her when she tried to avoid him by going to stay with her cousin and her grandmother.
The submissions also say it is not reasonable to require the applicant to relocate because of her youth and vulnerability. The Tribunal must ask itself if the applicant is now relevantly young and vulnerable given that over 6 years have passed since those submissions were made.
The submissions note that there is no evidence of a safe third country to which the applicant might flee. The Tribunal is satisfied that this submission is correct.

Evidence before the Tribunal

The applicant attended the hearing by the Tribunal on 7 September 2023.
She said she had come to Australia [in] October 2014 and that the trip had been organised by her cousin.
Her cousin came to Australia first and she followed a few months later with his wife and children and two of his friends.
She lived with her cousin and his family for a few months during which time he looked after her.
Her cousin could no longer look after her and she moved to [Town 1] in Victoria where her cousin had a contact on a vegetable farm, and they got work. She went to [Town 1] with the two friends of her cousin who had come to Australia with her. This work was in breach of her visa conditions.
She stayed there until the end of 2015 when she met [a Nationality 1] man, and they started a relationship.
She then went to [Town 2] with her boyfriend, and they moved around a bit. She did not work in this time, but he did, driving a tractor and picking [fruit]. Ultimately, they returned to [Town 2].
In early 2016 the house they were living in was raided by immigration and they asked her why she was staying in Australia illegally.
She told immigration she had been abused by her brother and had fled his mistreatment. That was the first time she had made this claim.
She said she did not tell immigration about her brother wanting to sell her to the gang.
The applicant said her reasons for wanting to come to Australia were all related to her family in Malaysia.
She told the Tribunal that, in addition to her brother, her mother abused her by hitting her.
She also said her stepfather, a police officer, had touched her private parts when her mother was not around.
The Tribunal noted that this was a new allegation and asked if she had told anyone else about it. She said she had told her lawyer, who worked for the refugee service and represented her when she was in Villawood detention centre.
The Tribunal asked whether that was the lawyer who prepared the submissions of 18 October 2017. The applicant agreed that it was.
There is no mention of abuse by her stepfather in those submissions or in any of the statements prepared with the lawyer’s assistance.
She said her mother and stepfather had married in 2007 and that her stepfather had touched her a few months later.
She agreed that her brother is the most important source of threat to her.
He started to beat her about a year after her father died, at which time she was about [age] years old and he was [older age].
She said she finds it difficult to remember details about her mistreatment as she was traumatised by it. She said she sought counselling for this trauma [in] 2021.
The Tribunal again asked about the first mistreatment of the applicant by her brother. She agreed she was about [age] years old and he was about [age]. The Tribunal asked whether their fighting was different to what might be normal between siblings of those ages. The applicant said she thought it was more than that.
The applicant said her brother started using drugs when he was about [age range] years old. She said he used ice. She knew this because she saw it in his room. She said she was [age] and he was [age range] and she saw smoking implements and a package of drugs.
She said he was later in a gang which was common knowledge at her high school.
She said her brother was selling drugs and when she turned [age] he forced her to sell drugs too. She could not remember the name of the gang. She then said there were 2 gangs selling drugs, the [gang names]. She thought her brother was involved with the [named] gang.
She said she sold about 6 packs of the drug ice at school, but then told her brother she was not prepared to do it any more. Her brother then beat her until she was bleeding and put petrol on her and threatened to light it.
She was not sure when he joined the gang but believed it was probably when he was [age range] at which point he was using and selling ice.
She said her mother had married her stepfather as his second wife. Her mother and her stepfather’s first wife did not get along so they did not live together with the other wife. Her stepfather would spend about 3 days a week with them and the rest of the time with his other wife.
The applicant said no one in her family worked and that they were supported by her gangster brother. Her mother did receive a relatively small pension as well.
In early 2014 the applicant’s brother told her he owed the gang about [amount] Ringgit. He said he had to give her to them to satisfy the debt. That was at about the same time as he was forcing her to sell drugs.
She said she does not know if her brother still owes the gang money.
She agreed that the debt was incurred about 9 or 10 years ago.
The Tribunal observed that it seems unlikely that the gang would allow the debt to go unpaid for such a long time and would presumably have done something to make her brother pay. She replied that she does not know about the status of the debt, just that her brother threatened to kill her if she goes back to Malaysia.
The Tribunal asked her about the statement to the Tribunal in which she says she was raped by her cousin. She said that happened twice when she was about [age]. The guilty party was not the cousin who brought her to Australia. There is no evidence this is an ongoing threat.
The Tribunal asked the applicant to explain how she had been a victim of human trafficking. She explained that if her brother had given her to the gang, they might have sold her into slavery.
The Tribunal asked the applicant whether her brother had threatened to harm her mother if she did not return to Malaysia[3]. The applicant agreed he had said that, but then said she did not remember. She asserted that her brother had said he would kill her if she did return but could not remember his threat to kill her mother, despite it being in her statement.
[3] Statement of applicant provided pre departmental interview, undated, 13 pages, 66 paragraphs, at paragraph 43.
The Tribunal observed that the applicant had been illegally in Australia without a visa twice. She agreed that was correct.
The applicant agreed with the Tribunal’s observation that she had arrived in Australia to seek protection in October 2014, and had finally decided not to return to Malaysia in 2015, but did not seek a protection visa until September 2017.
She agreed that in the time between arriving in Australia and applying for a protection visa she had been taken into custody by immigration on two occasions.
She agreed that on the first occasion she was taken into custody, she had been given a bridging visa on the condition she apply for a protection visa, but instead she went illegal again. She said she was afraid because a friend had told her Immigration would send her back.

She had since lost contact with that friend.
The Tribunal put to the applicant that it was not convincing to say she would be taking less of a chance remaining in Australia illegally than by applying for a protection visa. The applicant insisted that that was her thinking.
The Tribunal accepts that the applicant was young at the time of the grant of that visa – only about [age range] years old. On the other hand, it had been made clear to her at that point that she should apply for a protection visa, but she elected not to do so and instead go illegal.
The applicant had insisted that she took so long to apply for a protection visa because no one had told her about them.
When the Tribunal put to her that she had been told about them when she was taken into custody, she said they had not been explained to her. She said that even though she was in detention and had been told to apply for a protection visa she did not make any enquiries about protection visas and did not apply for one.
The applicant’s evidence on this topic was most unconvincing.
The Tribunal asked the applicant where she had lived in Malaysia. She said she had lived in Pulau Pinang (Penang) which was about 6 hours away from Kuala Lumpur.
She understood that Malaysia has a population of about 30 million people.
She said she does not believe she would be safe in Kuala Lumpur because when she went to stay at her cousin’s house there her brother found out where she was and brought her back because he was worried she would inform on him for selling drugs.
The Tribunal put to her that Kuala Lumpur is a big city and she should be able to keep a low profile there. She disagreed and insisted her brother will know when she gets there because of his contacts.
The Tribunal notes that in her departmental interview she said she had tried to move to Kuala Lumpur to live with another cousin before she came to Australia, but her brother had found out where she lives through her mother.
She said she had to tell her mother where she was because the applicant needed her mother’s support. The applicant is now significantly older and the Tribunal is not satisfied she would need her mother’s support to live in Malaysia.
The applicant has lived independently of her mother for many years in Australia and is now [age] years old. She told the Tribunal that she and her boyfriend broke up in 2020 and she has been single since then.
She also said she could not go to the police in Malaysia for protection fromher brother because of her stepfather’s contacts. She said she could not go to a police station where he did not work because all the police stations have the same contacts. She did not say how she knows this.
The Tribunal observed that she had previously said the reasons she could not go to another police station was because it was too far away for her. She then agreed that that had been the reason she had not gone to another police station.
The applicant’s evidence about this was inconsistent and unconvincing.
The Tribunal advised the applicant that there is a report prepared by the Australian Government about conditions in Malaysia[4]. In that report it says the Royal Malaysian Police are considered to be an effective organisation[5]. The applicant did not agree.
[4] DFAT Country Information Report Malaysia 29 June 2021.
[5] Ibid. par. 5.5.
The Tribunal notes the applicant’s disagreement is consistent with the report’s notes that Malaysians perceive the police as corrupt and further that there is support for that[6].
[6] Ibid. par. 5.6.
The Tribunal suggested that if she needed the support of the police and was not living in the same region as her stepfather, she should be safer. She disagreed saying she thinks that they all have contacts.
The applicant’s evidence about this was not convincing. She did not claim to be speaking from knowledge. Her evidence was speculative. She had earlier said she could not report her brother to the next nearest police station because it was too far away. She did not at that point suggest there was a web of corruption that extended to the next nearest police station.
At the conclusion of the testimony the applicant was advised that anything further that was submitted to the Tribunal before the finalisation of this decision would also be considered.
The applicant did not provide anything further other than a change of address.

Other Evidence

On 7 September 2023 in anticipation of the hearing of this matter the applicant provided copies of two short statements.
The first is signed by her cousin [named], the wife of the applicant’s cousin and the woman who accompanied the applicant to Australia. The second is from the applicant’s [named brother]
The statements are not sworn and the Tribunal has not been able to test them.
They are both general in nature and although each asserts that the applicant was abused, tortured and nearly killed by her brother, neither makes it clear how the author knows that to be the case.
The Tribunal finds the statements unpersuasive.

Findings

With some hesitation the Tribunal finds that the applicant has suffered physical, sexual and emotional abuse at the hands of her brother, mother, stepfather and cousin.
There is no suggestion the sexual abuse at the hands of her cousin progressed beyond the age of about [age] and the Tribunal is not satisfied there is a relevant chance or risk of it recurring if she returns.
The sexual abuse at the hands of her stepfather was opportunistic and was inflicted on her when she was a young girl of no more than [age] years old. The Tribunal is not satisfied the applicant would be subjected to that abuse if she were to return to Malaysia now as [an age] year old woman.
Further, the Tribunal is not satisfied the applicant would be in contact with her stepfather if she were to return to Malaysia.
The abuse at the hands of her mother was in the nature of beatings inflicted on a child by her mother. The applicant is no longer a child and the Tribunal is not satisfied the applicant would be subjected to beatings if she returned to Malaysia.
Further, the Tribunal is not satisfied the applicant would need to be in contact with her mother if she were to return to Malaysia.
The applicant gave evidence that her greatest fear is of continuation of the abuse her brother inflicted on her. She says he abused her by beating her, threatening to kill her and threatening to sell her into some form of slavery.
She gave evidence that the threats arose because of her brother’s need to repay the gang a debt he owed them.
She did not know whether he still owes the gang the money. She acknowledged that the debt was owed a long time ago. In response to the Tribunal’s observation that it would be surprising if the gang had not done something to resolve the debt in the meantime, she replied that all she knew was that her brother threatened to kill her if she returns to Malaysia.
She could not explain why he would make that threat.
When the Tribunal put to her that she had also claimed her brother had threatened to kill her mother if the applicant did not return to Malaysia, the applicant had no further comment. She was not able to explain why, on one hand he did not want her to return to Malaysia and on the other hand he demanded her return.
There is no evidence the applicant’s brother has harmed the applicant’s mother despite his alleged threats to do so.
The Tribunal is not satisfied that the applicant’s brother still owes money to a gang.
The Tribunal is not satisfied that the applicant’s brother genuinely intends to inflict relevant harm on her if she returns to Malaysia now.
Further, the Tribunal is not satisfied that the applicant would have contact with or be traceable by her brother if she were to return to Malaysia.
The applicant told the Tribunal that her mother and brother live in Penang, about 6 hours away from Kuala Lumpur.
When the applicant moved to Kuala Lumpur to avoid her brother, she lived with cousins and her mother knew where she was. Her brother got the address from her mother and was able to find her. The applicant was [age] years old or younger.
The Tribunal is not satisfied the applicant still relies on her mother or would live with her mother if she returned to Malaysia as [an age] year old.
The Tribunal is not satisfied the applicant would need to live with family members if she returned to Malaysia. The Tribunal notes that she has lived in Australia without the support of family members or a boyfriend since 2020, around 3 years.
The applicant’s brother was apparently able to find her in the past in Malaysia because she was staying with family members. There is no evidence to suggest he would be able to find her if she did not live with family members, other than the applicant’s own testimony to that effect.
That testimony is no more than an assertion and is not explained.
The Tribunal is satisfied that any harm the applicant may face is restricted to Penang and its environs as long as her brother is living there.
The Tribunal is not satisfied that the applicant’s brother would be able to find her if she lived in another part of Malaysia, such as Kuala Lumpur or elsewhere on Peninsular Malaysia.
The Tribunal is not satisfied the applicant would need to tell her mother where she was living if she returned to Malaysia.
The Tribunal is satisfied that it is reasonable as contemplated by the relevant authorities for the applicant to relocate away from Penang if she is returned to Malaysia[7].
[7] For example SZATV v MIAC (2007) 233 CLR 18 at [72].

S36(2)(a) - REFUGEE CRITERION

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. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of Malaysian nationality. Further, the Tribunal is satisfied that the applicant is outside Malaysia.

The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Malaysia, which is the next part of the definition of “refugee” at 5H(1)(a).

S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
a.The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
b.There is a real chance that, if the applicant returned to Malaysia she 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 Malaysia.
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.
She claims to fear harm at the hands of her cousin, mother and stepfather.
These claims to fear harm were made after the Delegate made their decision.
The applicant has not explained why the claims could not have been made earlier. In particular, the applicant says she advised the lawyer who made the submissions of October 2017 about some of these claims but they are not reflected in her statements or the submissions.
The Tribunal is satisfied the applicant does not have a reasonable explanation why the claims were not raised before the primary decision was made and draws an inference unfavourable to the credibility of these claims as directed by s.423A of the Act.
In any event, the Tribunal is satisfied that the applicant does not have a “well founded fear of persecution’ arising from these claims because, even if they were made out, she could avoid such persecution by relocating in Malaysia.
The applicant’s claims largely arise from her claimed fear of her brother.
The Tribunal has regard to the applicant’s evidence that she does not know whether her brother still owes a debt to a criminal gang.
The Tribunal is not satisfied that he does. The applicant did not respond to that when the Tribunal put it to her other than to say he threatened her recently.
The Tribunal is not satisfied that is the case. The applicant gave evidence that her brother made threats if she did not return to Malaysia and also made threats if she did. Her evidence about this was inconsistent and unconvincing. The applicant was not able to provide clarification when the Tribunal put the inconsistency to her.
The Tribunal is not satisfied that the applicant fears relevant harm and is not satisfied the applicant comes within s5J(a). That being the case, the Tribunal is not satisfied the applicant satisfies the definition of “refugee”.
That being the case the applicant does not satisfy the Refugee criterion in s36(2)(a) of the Act.
In any event, for the reasons set out under the heading “Findings” above, the Tribunal is satisfied that, if the applicant returned to Malaysia she would be able to relocate within that country and avoid her brother and so does not satisfy s5J(1)(c).

Conclusion re Refugee Criterion

The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).

S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION

Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), she may nevertheless be entitled to the grant of the visa if she meets s 36(2)(aa) (‘the complementary protection criterion’).

To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of her being removed to Malaysia there is a real risk that she will suffer significant harm.
The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
S36(2A) provides as follows:

(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.

The text of s36(2B) is attached to this decision.
For the reasons set out in its findings above, the Tribunal is not satisfied the applicant will suffer significant harm as defined above if she returns to Malaysia.
In any event, s36(2B) relevantly provides that there is taken not to be a real risk that the applicant will suffer significant harm in a country if it would be reasonable for her to relocate to an area where there would not be a real risk she will suffer significant harm.
The Tribunal is satisfied that relocation would be a reasonable option for the applicant.
The Tribunal therefore finds that the applicant does not satisfy s36(2)(aa), the Complementary Protection criterion.

Conclusions

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).
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).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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 any of the criteria in s 36(2).

DECISION

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

Mark O’Loughlin

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

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 618

15 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction