1733097 (Refugee)

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 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.
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 (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
A summary of the claims in the Form 866C submitted by the second named applicant are as follows.
The second named applicant left Malaysia due to a family crisis involving a dispute with her siblings over the family properties. This caused her stress and anxiety.
The second named applicant fears that if she returns, she will continue to have difficulties with her siblings, which will trigger her anxiety.
She did not move to another part of Malaysia as it is not easy to find accommodation.
Evidence given to the Tribunal prior to the hearing
On 19 February 2024 the first named applicant, via her legal representative, provided a written statement in support of her claims for protection. The first named applicant reiterated that she fears persecution on the basis of her sexuality and her appearance as a boyish female.
Evidence given at the hearing
The applicants appeared before the Tribunal on 20 February 2024 to give evidence and present arguments. The applicants were represented by a legal practitioner at the hearing. The first named applicant gave oral evidence in English. The second named applicant gave oral evidence with the assistance of a Malay and English interpreter.
First named applicant’s oral evidence
The first named applicant confirmed during the hearing that she feared persecution because of her sexuality. She is a lesbian and a boyish female. She prefers to call herself ‘queer’. She would not be free to live openly in Malaysia. Everything would be difficult for her as she is judged for her appearance.
She said that she first realised she was queer when she was about 10 or 11 years old and developed a crush on a female teacher. At age 12 she had her first crush on a female student and at age 13 she fell in love for the first time. The first named applicant said that she came to realise that she was attracted to girls as she started to develop romantic feelings for girls, but never developed feelings for boys. The first named applicant said that she found out about homosexuality from a friend, who asked her if she liked girls. When the applicant told her friend that she liked girls, the friend told her that her older sister was like her.
The first named applicant said she knew that homosexuality was against Islam. She learned that she would have to hide her sexuality and true self to avoid being mocked by people in the community.
The first named applicant described the relationships she had had with women in the past. She said that she had been in a relationship with a woman named [Ms A] on an on-and-off basis for approximately 10 years. They met at university. They could not hold hands in public for fear of harassment. The first named applicant presented [Ms A] to her mother as her ‘best friend’. It was hard for the couple to plan a future together due to the stigma against homosexuality in the community. The relationship eventually ended as [Ms A]’s family came to know about the relationship. They forced [Ms A] to cut off communication with her and arranged [Ms A]’s marriage to a man.
The first named applicant discussed other same-sex relationships she had had, including with a woman named [Ms B] in Australia, and women named [Ms C] and [Ms D] in Malaysia.
The first named applicant said that her mother was aware of her sexuality and supports it. She had told her mother while in Australia. When she came out, her mother told her that she was already aware and was simply waiting to be told. The first named applicant said that members of the LGBTIQ+ community in Malaysia were aware of her sexuality, however she did not disclose it at work or to relatives.
The first named applicant said that in Malaysia she could not express herself or be herself. She said being forced to be private about her sexuality was mental torture.
The first named applicant discussed her life as a queer person in Australia. She said that in Australia she had freedom. She can cut her hair short and dress like a boy without problems. In Malaysia she had been harassed when going into a female bathroom as she looks like a boy. In Australia she had been involved with LGBTIQ+ support services and had celebrated Pride festival with her colleagues.
The first named applicant said that she had suffered verbal harassment in Malaysia. She said she fears it is only a matter of time before she will be physically harmed by members of the public, neighbours or colleagues. She also fears being jailed or fined under Muslim law because she chooses to dress like a boy.
The first named applicant said that she did not apply for protection on her first visit to Australia as she was not aware of protection visas at that time. She found out about protection visas in 2017 when one of her mother’s friends advised that queer people may be able to get a protection visa.
Country information
The latest DFAT Country Information report on Malaysia states as follows:
Sexual Orientation and Gender Identity
Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent. Article 377A of the Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration), which Article 377B penalises with imprisonment of between five and twenty years, along with whipping. Numerous state-level syariah based laws also prohibit both same-sex relations and non-normative gender expression.[1]
…
There is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. As noted in Media, authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI.[2]
[1] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Malaysia’, 29 June 2021 at 3.134.
[2] Ibid at 3.143.
More recent reports identify a trend of continuing harassment, discrimination and physical harm towards members of the LGBTIQ+ community, with no recourse or protection from the authorities. The United States Department of State 2022 Country Reports on Human Rights Practices: Malaysia states as follows:
On October 29, authorities from the Kuala Lumpur City Council, the Federal Territories Islamic Department (JAWI), and police raided a ticketed Halloween party at a commercial venue in Kuala Lumpur, according to an October 30 statement from the local district police chief. Many of the partygoers identified as LGBTQI+, according to media reports. Eyewitnesses said authorities asked the attendees to present their identity cards, and JAWI officers separated individuals listed as Muslim on their identity cards from non-Muslims. JAWI officers detained 20 individuals whose identity cards stated they were male Muslims for being a “male person who, in any public place, wears a woman’s attire and poses as a woman for immoral purposes.” Sources reported that party organizers allegedly received prior approval from police for the event. After legal intervention from the Malaysian Bar Council, JAWI released the detainees on bail on October 30, but the individuals were required to appear on October 31 for questioning and “counseling,” according to one of the detainees. Local human rights activists condemned the raid as intimidation of the LGBTQI+ community and some speculated the raid was likely done to galvanize conservative Muslims leading up to general elections on November 19.
Violence against LGBTQI+ Persons: Observers reported violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody. According to local advocates, imprisoned transgender women usually served their sentences in prisons designated for men and both police and inmates abused them sexually and verbally. A 2018 survey by a local transgender rights group reported more than two-thirds of transgender women experienced some form of physical or emotional abuse.
Discrimination: The law does not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics and does not recognize LGBTQI+ individuals, couples, or their families. LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality.[3]
[3] ‘Country Reports on Human Rights Practices for 2022 – Malaysia’, US Department of State, 20 March 2023, 20230321154721
According to a 2022 report by Human Rights Watch and Justice for Sisters, a legal environment that criminalises LGBTIQ+ people, the absence of non-discrimination protections and ubiquitous anti-LGBTIQ+ discourse from high-level government officials contribute to an environment in which discrimination on the grounds of gender identity and sexual orientation flourishes.[4]
[4] ‘I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia’, Human Rights Watch & Justice for Sisters, 10 August 2022, 20220811100800
The Human Rights Watch World Report 2024 states that state-sponsored discrimination against LGBTIQ+ people remains pervasive in Malaysia. In January 2023, Prime Minister Anwar Ibrahim rejected the idea that LGBTIQ+ Malaysians would be recognised and protected under his government.[5]
Findings, analysis and reasons
[5] ‘Human Rights Watch World Report 2024’, Human Rights Watch (HRW), 11 January 2024, 20240112083455 [Malaysia pp.404-409].
Findings in relation to the first named applicant

The first named applicant has consistently claimed that she is queer, and specifically identifies as a lesbian. The Tribunal accepts that the first named applicant is queer and her sexual orientation is towards women. The Tribunal has formed this impression on the basis of the consistency of claims between the protection visa application form, the applicant’s written statement submitted prior to the hearing and the evidence given at hearing. The first named applicant presented as a boyish female. She wore boyish clothing and her hair was cut in a short style more typically associated with men than women. She presented as visibly distressed when discussing her inability to be herself in Malaysia for fear of harassment or harm. She provided detailed oral evidence of her relationship history with numerous women in Malaysia and Australia and the reasons why these relationships ended, including on one occasion because her long-term partner’s family forbid the relationship.
Later in the hearing, the second named applicant corroborated the first named applicant’s evidence in a spontaneous manner. The Tribunal had not yet asked the second named applicant about her daughter’s sexuality when she disclosed the harassment faced by the first named applicant for her sexuality, as well as the harassment she had faced for being the mother of a homosexual.
The Tribunal finds that the first named applicant would be perceived as homosexual in Malaysian society. The Tribunal accepts that the applicant has faced harassment in Malaysia as claimed and, based on the country information, that this harassment may escalate into physical violence.
The Tribunal finds that the applicant faces a real chance of serious harm if returned to Malaysia on the basis of her membership of a particular social group, namely lesbians, including lesbians of masculine or boyish appearance. Her sexual orientation is a characteristic she shares with other members of the group; it is an innate characteristic; it is distinguishable from the rest of society; and it is not the shared fear of persecution: s 5L. The Tribunal is satisfied that the applicant’s membership of this particular social group is the essential and significant reason for the feared harm: s 5J(4)(a). Based on the country information, the Tribunal finds this harm may include physical violence, harassment and discrimination in relation to employment, housing and access to some government services. The Tribunal is satisfied the persecution involves systematic and discriminatory conduct. The Tribunal finds the real chance of serious harm extends to all parts of the country.
The Tribunal finds that the first named applicant’s sexuality is an immutable characteristic and she is not required to conceal her true sexual orientation to avoid persecution. Such a modification would fall within various exceptions in s 5J(3), including concealing an innate or immutable characteristic of the person, or requiring the person to alter or conceal their sexual orientation.
The Tribunal finds the authorities of Malaysia cannot or will not provide effective protection measures to the applicant. Based on the country information, the Malaysian police are complicit in persecution against homosexuals, or are unwilling to assist complainants.
The Tribunal has considered s 36(3) of the Act, but based on the available evidence the Tribunal finds the first named applicant does not have a right to enter and reside in a third country and therefore s 36(3) is not applicable.
For the above reasons, the Tribunal finds the first named applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1)(a) of the Act.
Findings in relation to the second named applicant
The second applicant submits that she is a member of the first named applicant’s family unit. This requirement must be met at the time of making the application and at the time a decision is made. The Tribunal notes that the delegate of the Department of Home Affairs accepted that the applicants were members of the same family unit at the time of application (and at the time of the delegate’s decision). Based on the information in the protection visa application form, the Tribunal is satisfied the applicants were members of the same family unit at the time of making the protection visa application. The contentious issue is whether the second named applicant is a member of the family unit of the first named applicant at the time of the Tribunal’s decision.
The Regulations in force at the time of application prescribe criteria as to when a person (the first person) is a member of the family unit of another person (the other person). Regulation 1.12 defines ‘member of the family unit’ in the following way:
Reg 1.12 Member of the family unit
Scope
(1)   This regulation has effect for the purposes of the definition (the main definition) of member of the family unitin subsection 5(1) of the Act.
…
Protection, refugee and humanitarian visas
(3)   Subregulation (4) has effect for the purposes of the main definition so far as it is relevant to a provision of the Act or these Regulations applying in relation to any of the following visas:
(a) a Protection (Class XA) visa;
(b) a Refugee and Humanitarian (Class XB) visa;
(c) a Temporary Protection (Class XD) visa;
(d) a Safe Haven Enterprise (Class XE) visa;
(e) a Resolution of Status (Class CD) visa;
(f)   a Temporary Safe Haven (Class UJ) visa;
(g) a Temporary (Humanitarian Concern) (Class UO) visa;
(h) a Territorial Asylum (Residence) (Class BE) visa.
(4) A person is a member of the family unit of another person (the family head) if the person is:
(a)a spouse or de facto partner of the family head; or
(b)a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(c)a dependent child of a dependent child of:
(i)   the family head; or
(ii) a spouse or de facto partner of the family head; or
(d)a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i)   does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
Relative is defined in reg 1.03 to include a person’s close relative:
relative, in relation to a person, means:
(a) in the case of an applicant for a Subclass 200 (Refugee) visa or a or a protection visa:
(i)a close relative; or
(ii)a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or
(iii)a first or second cousin; or
(b) in any other case:
(i)a close relative; or
(ii)a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
Close relative is defined in reg 1.03 to include a person’s parent:
close relative, in relation to a person, means:
(a) the spouse or de facto partner of the person; or
(b) a child, parent, brother or sister of the person; or
(c) a step-child, step-brother or step-sister of the person.
Regulation 1.05A(2) provides that for applications for protection, refugee and humanitarian visas, dependency relates to financial, psychological or physical support.
Who is the family head?
In its assessment, the Tribunal has considered whether the first named applicant is the ‘family head’ for purposes of this application. The Tribunal notes that she was the first named applicant on the protection visa application form, and her mother made claims of being a member of her family unit, not the other way round. As such, the Tribunal is satisfied that the first named applicant is the family head.
Does the second named applicant have a spouse or de facto partner?
In their oral evidence, the applicants said that the second named applicant does not currently have a spouse or de facto partner. She has been single for approximately 15 years. She had divorced from her late husband prior to his death. There is no evidence that the second named applicant presently has a spouse or de facto partner.
Is the second named applicant usually resident in the first named applicant’s household?
What is the test?
Where a person usually resides or is usually resident is a finding of fact for the Tribunal which requires a broad factual inquiry.[6] The concept of ‘residence’ has received considerable attention in common law, usually in the context of taxation or social security legislation. It was considered by the High Court in the taxation case of Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (Koitaki’s case).[7] Justice Williams, with whose reasons Rich ACJ and McTiernan J expressed agreement, made the following observation regarding residence:
The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode.[8]
[6] Tahiri v MIAC [2012] HCA 61 at [16].
[7] Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241.
[8] Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241 at 249.
In Scargill v MIMIA,[9] the Full Court of the Federal Court considered the concept of usual residence in the context of a previous version of reg 1.15, which related to the remaining relative visa but is also applicable to the definition of member of the family unit. The Court endorsed the application of the test in Koitaki’s case but found that the Tribunal had failed to correctly apply that test by failing to consider the factors of physical residency and intention which were described as ‘essential elements’ in the notion of ‘usually resides’.[10]
[9] Scargill v MIMIA (2003) 129 FCR 259.
[10] Scargill v MIMIA (2003) (2003) 129 FCR 259 at [17], [21].
Based on the above authorities, the Tribunal considers usual residence should be determined by reference to where the person eats and sleeps and has his or her settled or usual abode. This requires consideration of the person’s physical presence in a particular place and their intention to treat a place as home. A person may simultaneously be usually resident in more than one place.[11]
[11] Re Taylor (1992) 37 FCR 194.
Oral evidence
The applicants gave evidence at the hearing in relation to their current living and financial arrangements, address history and employment history. The applicants’ evidence was generally consistent and the Tribunal is satisfied they did not embellish their evidence to fit their circumstances within the definition of ‘member of the family unit’. As such, the Tribunal finds the applicants to be credible witnesses. Based on the consistent oral evidence of the applicants, the Tribunal accepts the following:
·the applicants have previously resided together in [City], [Town] and Melbourne, amongst other towns and cities. They resided together in [Town] for approximately 2 years;
·the first named applicant currently lives in Melbourne, Victoria;
·the second named applicant currently lives in [Town], Victoria. This is approximately a [Number]-hour drive from Melbourne;
·the applicants lived together in Melbourne until approximately June 2023. The second named applicant returned to [Town] as she does not like big city life;
·the second named applicant stays in a cabin located on [a workplace] where she currently works as [an Occupation] on a casual basis. She sleeps in one room in the cabin and her colleagues sleep in other rooms. The accommodation is provided by her employer. The second named applicant works between 3 and 5 days per week;
·the first named applicant provides the second named applicant with some financial assistance, regularly giving her cash for living expenses, paying for her fuel and meals and buying items for her;
·the second named applicant regularly travels to Melbourne to visit the first named applicant. When required, the first named applicant will take the second named applicant to medical appointments;
·the first named applicant calls the second named applicant regularly to check in with her emotionally and ask about her health;
·the second named applicant has experienced mental health problems and has seen a counsellor in Australia. She takes sleeping tablets;
·the applicants do not have other family ties to Australia;
·the applicants intend to live together in the future, when they can find a place to live that suits them both.
Documentary evidence
The Tribunal has also had regard to the bundle of the applicants’ bank statements provided to the Tribunal via their representative on 4 March 2024. Based on the transactions listed in the second named applicant’s bank account for the period 17 November 2023 to 27 February 2024, the Tribunal accepts the second named applicant:
·spends time in Melbourne, which the Tribunal accepts is spent with her daughter;
·purchases fuel regularly at petrol stations located between Melbourne and [Town].
Based on the translations listed in the first named applicant’s bank statements, the Tribunal accepts the first named applicant:
·pays for meals out with her mother in Melbourne;
·makes purchases for her mother at retail stores;
·on occasions pays for her mother’s fuel at petrol stations in Melbourne.
Consideration
Firstly, the Tribunal considered whether the second named applicant is ‘usually resident’ in [Town], at the [workplace] where she works. As discussed in Koitaki’s case above, there are two elements that must be present to find that a person is usually resident. While the first element of physical presence at [workplace] is met, the Tribunal finds that the second element, namely an intention to treat that place as home, is not. On the applicants’ evidence, the second named applicant lives in the cabin as it is provided by her employer, but she does not consider it home. She needs to live there to perform her job duties. The Tribunal considers the second named applicant’s accommodation at her workplace akin to the fly-in fly-out method of employing people in regional areas by transporting them temporarily to the worksite instead of relocating employees permanently. While the second named applicant usually eats and sleeps in the cabin provided by her employer, the Tribunal does not consider that she is usually resident there.
The Tribunal next considered where, if anywhere, the second named applicant is usually resident. The Tribunal has considered whether the second named applicant is usually resident in the first named applicant’s household in Melbourne. Again, applying the test in Koitaki’s case, the Tribunal has considered the essential elements of physical residency and intention.
In terms of physical residency, the Tribunal accepts that the second named applicant spends substantial periods of time with the first named applicant in Melbourne, and that she stays with the first named applicant. As stated above, the Tribunal also accepts that the applicants lived together in Melbourne up until approximately June 2023. The Tribunal has also considered the applicants’ evidence that they intend to cohabit in the near future. The information contained in the applicants’ bank statements is consistent with their oral evidence of the second named applicant regularly travelling to visit the first named applicant in Melbourne. Based on the above, the Tribunal is satisfied the second named applicant maintains physical residency with the first named applicant in Melbourne, despite the fact that the second named applicant spends substantially more time in [Town].
The Tribunal accepts the representative’s submission that the applicants have only temporarily lived apart recently due to the second named applicant’s dislike of the hectic nature of the city. The Tribunal finds that this temporary period of living apart has not severed the second named applicant’s usual residence with the first named applicant.
In terms of intention, the Tribunal has considered the applicants’ oral evidence that their intention is to live together. The Tribunal finds that the second named applicant lives an isolated life. Her English is limited, she resides at her workplace where her social interactions on a daily basis are limited to her colleagues and she has no significant personal ties in Australia besides her daughter. The Tribunal also has considered and accepts the second named applicant’s evidence that she is isolated from her family in Malaysia. The Tribunal finds that the applicants’ intention to live together is substantially due to the second named applicant’s dependency on her daughter. Dependency is discussed further below.
When assessing both physical residency and intention together, Tribunal has considered whether the second named applicant has retained a continuity of association with the first named applicant’s household in Melbourne, whether she has an intention to return to that place, and her attitude as to whether that place remains home. While the Tribunal acknowledges the second named applicant does not like the hectic city life in Melbourne, the Tribunal places significant weight on the second named applicant’s strong intention to live with her daughter, and accepts that they will try to find accommodation suitable to both. The Tribunal finds that the exact location of where they live is not as important as the second named applicant’s attitude that home is where her daughter is.
For the above reasons, the Tribunal finds that the second named applicant is usually resident in the first named applicant’s household.
Is the second named applicant dependent on the first named applicant?
To be considered ‘dependent’ under reg 1.05A(2), the second named applicant must demonstrate that she is wholly or substantially reliant on the first named applicant for financial, psychological or physical support.
The Tribunal has considered whether the second named applicant’s psychological dependence on the first named applicant exceeds the normal emotional ties between family members. The Tribunal notes that departmental policy states, ‘The policy intention is that psychological dependence be related to a mental or emotional impairment or a medical condition preventing the person from living independently. This is a situation different from a close family relationship and the normal dynamics of family life.’[12] The Tribunal also notes that departmental policy should not be applied inflexibly.
[12] All stacks 01/03/2024 - POLICY - MIGRATION ACT Act-defined terms instructions s5Gs5G - Relationships and family members - Dependent family members at 39.2.
The Tribunal has considered the individual circumstances of the second named applicant, namely her mental health problems including anxiety, stress and trouble sleeping; her age; her reliance on her daughter to take her to medical appointments; her isolation in Australia due to her limited English and employment location; and her claims of persecution if returned to Malaysia.
The Tribunal has not conducted a complete assessment of the second named applicant’s claims for protection, however the Tribunal accepts that the second named applicant’s fear is real, regardless of whether she has a well-founded fear of persecution for a refugee reason. The second named applicant presented as distressed during the hearing, and the Tribunal accepts that she has experienced some problems in Malaysia, resulting in her becoming isolated from members of her village and some of her siblings. The Tribunal accepts that some of the trauma in the second named applicant’s life in Malaysia resulted from the harassment her and the first named applicant faced due to the first named applicant’s sexuality. The applicants have the shared lived experience of harassment in Malaysia, the first named applicant for her sexuality and the second named applicant for being the mother of a lesbian. As the first named applicant is aware of and has shared part of the second named applicant’s trauma, the Tribunal accepts that the second named applicant relies on her daughter for psychological support, rather than relying on mental health professionals in Australia who do not know the whole story and would not likely understand the cultural context of the problems in Malaysia. The Tribunal has accepted that the second named applicant regularly travels to Melbourne to be with the first named applicant, and the Tribunal accepts this is further evidence of her psychological dependency on her daughter.

Considering the above factors, the Tribunal finds that the level of the second named applicant’s dependency on the first named applicant is greater than the normal ties of love and trust between a mother and daughter. The Tribunal is satisfied the second named applicant is substantially reliant on the first named applicant for psychological support.
The Tribunal is satisfied the second named applicant is a member of the family unit of her daughter under reg 1.12(4). As such, the Tribunal finds it is not necessary to consider whether the second named applicant is entitled to protection under s 36(2)(a) or s 36(2)(aa).
Conclusion
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
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 Manera
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2269

25 March 2024

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