1801384 (Refugee) - [2024] AATA 4102

1801384 (Refugee) [2024] AATA 4102 (27 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801384
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Amy Faram
DATE:27 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 27 August 2024 at 11:05am

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – Muslim – applicant remains of adverse interest to her stepmother – extensive family violence – faces a real risk of being subjected to cruel or inhuman treatment – mental health – an unaccompanied and mentally unwell woman in Malaysia – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 December 2017 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, a citizen of Malaysia, applied for the visa on 25 September 2017. The delegate refused to grant the visa on the basis that the Applicant’s fears were not for a refugee reason and, with respect to complementary protection, she could obtain protection such that there would not be a real risk she would suffer significant harm in Malaysia. The delegate also found that the some of the harm feared did not constitute significant harm.
The Applicant appeared before the Tribunal on 5 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s husband [Mr A].
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
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…

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 1801384 (Refugee)

Details

AGLC: 1801384 (Refugee) [2024] AATA 4102
Case: [2024] AATA 4102
Decision Date: 27 August 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Malaysian citizen who arrived in Australia in mid-2017. The applicant sought review of a delegate's decision to refuse her application, having initially applied for protection due to alleged experiences of physical violence and severe neglect by her stepmother in Malaysia. The applicant also claimed a well-founded fear of persecution due to her religion and potential harm from family members, including being an unaccompanied and mentally unwell woman in Malaysia. The case was heard by Amy Faram.

The central legal issue before the Tribunal was whether the applicant qualified for protection obligations under s 36 of the Act and clause 866.221 of Schedule 2 to the Regulations. This required determining if, on account of her religion and/or potential harm from family members, she faced a real risk of being subjected to cruel or inhuman treatment in Malaysia. The Tribunal was also required to consider the applicant's mental health status and her circumstances as an unaccompanied woman in Malaysia, in accordance with Ministerial Direction No. 84 and relevant guidelines.

The Tribunal found the applicant's oral evidence to be credible and compelling, consistent with her written statements and corroborative evidence, including a psychiatrist's report detailing her mental health conditions. The Tribunal was satisfied as to the applicant's identity and considered Malaysia to be the receiving country for the assessment of her protection claims. The applicant's marriage to an Australian man in February 2022 was also a factor, as returning to Malaysia would mean separation from her husband. The Tribunal concluded that the applicant had a well-founded fear of persecution.

The Tribunal decided to remit the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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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 (the Department), 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 issue in this case is whether, on account of her religion and/or because of harm she would face from some of her family members, the Applicant is a person to whom Australia has protection obligations under s 36 of the Act and clause 866.221 of Schedule 2 to the Regulations. Having reviewed the Applicant’s identity documents and heard her oral evidence, it is satisfied as to her identity as a citizen of Malaysia. For the purposes of this protection eligibility assessment Malaysia is the ‘receiving country’, and the Applicant’s protection claims are assessed as against circumstances in Malaysia as these relate to her claims. The Applicant was born in [year] and arrived in Australia in mid-2017. Later that year, she applied for protection, setting out her claims for protection on account of her experiences of physical violence and severe neglect at the hands of her stepmother in Malaysia. After her application was refused by the delegate, without interview, the Applicant sought review of the primary decision. She has provided further statements and evidence to the Tribunal in support of her claims, including: - An 18 page statutory declaration dated 27 September 2023; - A copy of her mother’s death certificate; - A copy of the Victorian marriage certificate for the Applicant and husband [Mr A]; - A copy of a statement setting out the reasons why the Applicant could not provide a wali from her father for her Islamic marriage; - A copy of a report from psychiatrist [name], dated 26 May 2023; - A copy of a referral from [a named doctor] dated 12 May 2023; - A copy of the Applicant’s mental health plan, re: depression, anxiety, adhd, from May 2023; - Copy photographs of her with her husband’s family and with their dog; and - A letter from her husband. In response to the pre-hearing information form sent to the Applicant by the Tribunal, the Applicant noted that she had married an Australian man in February 2022, having known him since February 2020. She reiterated her fear of living in Malaysia, including because it would now also mean that she would have to live separately from her husband between two countries. At the hearing of this matter, the Applicant gave credible and compelling evidence about her experiences in Malaysia and her fears of experiencing harm there were she to returned. The couples’ evidence was consistent, and the Applicant’s oral evidence was consistent with her statements and with the corroborative information provided in support of her application, including from her psychiatrist.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Sections 5(1) and 36(2A) and (2B) 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 (the Department), 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 issue in this case is whether, on account of her religion and/or because of harm she would face from some of her family members, the Applicant is a person to whom Australia has protection obligations under s 36 of the Act and clause 866.221 of Schedule 2 to the Regulations. Having reviewed the Applicant’s identity documents and heard her oral evidence, it is satisfied as to her identity as a citizen of Malaysia. For the purposes of this protection eligibility assessment Malaysia is the ‘receiving country’, and the Applicant’s protection claims are assessed as against circumstances in Malaysia as these relate to her claims. The Applicant was born in [year] and arrived in Australia in mid-2017. Later that year, she applied for protection, setting out her claims for protection on account of her experiences of physical violence and severe neglect at the hands of her stepmother in Malaysia. After her application was refused by the delegate, without interview, the Applicant sought review of the primary decision. She has provided further statements and evidence to the Tribunal in support of her claims, including: - An 18 page statutory declaration dated 27 September 2023; - A copy of her mother’s death certificate; - A copy of the Victorian marriage certificate for the Applicant and husband [Mr A]; - A copy of a statement setting out the reasons why the Applicant could not provide a wali from her father for her Islamic marriage; - A copy of a report from psychiatrist [name], dated 26 May 2023; - A copy of a referral from [a named doctor] dated 12 May 2023; - A copy of the Applicant’s mental health plan, re: depression, anxiety, adhd, from May 2023; - Copy photographs of her with her husband’s family and with their dog; and - A letter from her husband. In response to the pre-hearing information form sent to the Applicant by the Tribunal, the Applicant noted that she had married an Australian man in February 2022, having known him since February 2020. She reiterated her fear of living in Malaysia, including because it would now also mean that she would have to live separately from her husband between two countries. At the hearing of this matter, the Applicant gave credible and compelling evidence about her experiences in Malaysia and her fears of experiencing harm there were she to returned. The couples’ evidence was consistent, and the Applicant’s oral evidence was consistent with her statements and with the corroborative information provided in support of her application, including from her psychiatrist.