1733097 (Refugee) - [2024] AATA 2269

1733097 (Refugee) [2024] AATA 2269 (25 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Katie Wrigley
CASE NUMBER:  1733097
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sophie Manera
DATE:25 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 25 March 2024 at 2:00pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – homosexual woman of boyish appearance – verbal harassment and fear of physical harm, fine or jail – one relationship ended when partner’s family cut off communication and arranged her marriage to a man – other relationships and involvement with support services and pride festival – country information – widespread legal, religious and societal disapproval – not required to conceal immutable characteristic, and no effective protection measures available – second applicant mother – daughter family head for purposes of application – member of family unit usually resident in household – settled or usual abode – previously lived together in regional city and country town – first applicant living in Melbourne, second recently in country town – casual work and accommodation provided by employer – first applicant’s financial assistance and emotional and psychological support, and second applicant’s travel and mental health – intention to live together in suitable place – generally consistent evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (3), (4)(a), 5L, 36(2)(a), (b)(i)
Migration Regulations 1994 (Cth), rr 1.03, 1.05(2), 1.05A(2), 1.12, Schedule 2
CASES
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Scargill v MIMIA (2003) 129 FCR 259
Tahiri v MIAC [2012] HCA 61
Re Taylor (1992) 37 FCR 194
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant is a [Age]-year-old woman and a national of Malaysia. The second named applicant is the [Age]-year-old mother of the first named applicant and a national of Malaysia.
First named applicant’s immigration history
[In] December 2016 the first named applicant first arrived in Australia on a valid UD‑601 Electronic Travel Authority.
[In] February 2017 the first named applicant departed Australia.
[In] September 2017 the first named applicant arrived in Australia for the second time.
Second named applicant’s immigration…

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 1733097 (Refugee)

Details

AGLC: 1733097 (Refugee) [2024] AATA 2269
Case: [2024] AATA 2269
Decision Date: 25 March 2024

CaseChat Overview and Summary

This matter concerned a protection visa application made by two applicants, identified as mother and daughter, who claimed to be citizens of Malaysia. The dispute arose when the delegate of the Minister for Home Affairs refused their application, finding that they did not meet the criteria for a protection visa under section 36(2)(a) or (aa) of the *Migration Act 1958* (Cth), nor were they members of the same family unit as a person in respect of whom Australia had protection obligations. The applicants sought review of this decision before the Tribunal.

The Tribunal was required to determine whether either applicant qualified as a refugee or was entitled to complementary protection, and if so, whether they constituted a family unit for the purposes of the visa application. Specifically, the Tribunal had to assess whether the first applicant, a self-identified homosexual woman of boyish appearance, had a well-founded fear of persecution in Malaysia due to her sexual orientation, considering the legal, religious, and societal disapproval of homosexuality in that country. The Tribunal also needed to consider whether the second applicant, as the mother of the first applicant, was a member of the same family unit and thus eligible for a visa based on her daughter's potential eligibility.

The Tribunal found that while the applicants had provided consistent evidence of their mother-daughter relationship, it was not satisfied that the second applicant met the criteria for protection in her own right. However, it was satisfied that the second applicant was the mother of the first applicant and a member of the same family unit. The Tribunal concluded that the first applicant satisfied the criteria for being a refugee under section 36(2)(a) of the *Migration Act*, based on a well-founded fear of persecution for reasons of membership of a particular social group. Consequently, the Tribunal remitted the matter for reconsideration, directing that the first applicant be found to satisfy section 36(2)(a) and the second applicant to satisfy section 36(2)(b)(i) as a member of the same family unit.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 The issues in this case are whether at least one of the applicants meets the definition of refugee or is a person entitled to complementary protection and, if one applicant is found to be entitled to protection in Australia, whether the other applicant is a member of the same family unit as the applicant who is owed protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Nationality The applicants claim in their protection visa application form to be citizens of Malaysia. The applicants provided certified copies of their Malaysian passport biodata pages in support of the application. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants, the Tribunal finds that they are citizens of Malaysia, and as such their protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.Relationship between the applicants The applicants have consistently claimed they are mother and daughter. While the first named applicant did not provide a copy of her birth certificate to support the protection visa application, the Tribunal notes the applicants provided consistent evidence as to the first named applicant’s life story. Their oral evidence was consistent with 2 persons claiming to be mother and daughter. There is no evidence to suggest the applicants are not mother and daughter as claimed, and the delegate of the Minister for Home Affairs did not dispute their claimed relationship. The Tribunal finds that the first named applicant is the biological daughter of the second named applicant. The Tribunal’s assessment as to whether they are members of the same family unit is below.Protection visa application First named applicant’s claims A summary of the claims in the Form 866C submitted by the first named applicant are as follows. She is a lesbian and a boyish female. Homosexual relationships are prevented under Islamic law and homosexuals must hide their identity. The first named applicant’s father has passed away and her mother has lived in Australia for the past 2 years. She has no one else left in Malaysia. If she has to return to Malaysia she will have to find a new place to live and new employment. She will also face difficulties due to her sexual orientation. Second named applicant’s claims

Decision

Reasons for decision

The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the mother of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.DECISION The Tribunal remits the matter for reconsideration with the following directions:(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.Sophie ManeraMemberATTACHMENT - 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

[In] September 2017 the first named applicant arrived in Australia for the second time. Second named applicant’s immigration history [In] August 2015 the second named applicant arrived in Australia on a valid UD-601 Electronic Travel Authority, which expired on 25 November 2015. [In] November 2016 the second named applicant was granted a bridging visa C, which expired on 15 March 2017. Lodgement of protection visa application On 4 October 2017 the applicants jointly applied for a protection visa. The applicants were not invited to attend an interview to discuss their claims for protection. On 21 December 2017 the delegate refused the protection visa application. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants (s 36(2)(b) and s 36(2)(c) of the Act).Lodgement of the application for review On 28 December 2017 the applicants lodged a valid application for review with the Tribunal for review of the delegate’s decision. The applicants provided a copy of the delegate’s decision to the Tribunal. 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). 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–5LA, which are extracted in the attachment to this decision.