1813815 (Refugee)

1813815 (Refugee) [2024] AATA 3108 (12 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1813815
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Rebecca Mikhail
DATE:12 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 April 2024 at 4:08pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – domestic violence – claimed fear of stepfather – credibility concerns – family composition – applications from suspected siblings – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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

The applicant, who claims to be a citizen of Malaysia, arrived in Australia [in] September 2017 on a visitor visa.
On 5 December 2017 the applicant applied for a permanent protection visa.
On 9 May 2018 a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection. The relevant law and mandatory considerations are set out in the attachments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
APPLICANT’S CLAIMS FOR PROTECTION AND EVIDENCE
Before the Department
The applicant’s claims, as outlined in her application for protection, were as follows:
·I came to Australia because I want to move away from my stepfather, he always hit me and can’t control himself, makes me want to move somewhere far and I can find a job for support my life.
·My stepfather will harm and threatening to not report to the police about what happen to my family.
·Once I tried to move away from my house my stepfather threatening to harm my mother if I still not return home.
·Because I am afraid and trauma about what happens. He refuse me to move from house and almost everyday he mistreated with harm.
·My stepfather will find me and I do not know where to go, from that I don’t have any friend to give me a place to stay.
·My stepfather will keep finding me where I go because he afraid that I will report this to the police. That will give him full charge in court about what happen.
·I don’t have a friend that will give me a place to stay and since I finish my school I am not going anywhere alone accept with my parent.
Other than identity documents, the applicant did not provide any further supporting evidence to the Department in relation to her clams for protection.
The applicant was not invited to an interview with the Department of Home Affairs in relation to her application for protection.
The delegate refused the grant of the visa on the basis that state protection is available to the applicant. Further, they were not satisfied there was a real chance the applicant would suffer serious harm as a victim of domestic violence and there was no real risk of the applicant facing significant harm.
Review application
On 13 May 2018 the applicant lodged an application for review of that decision with the Administrative Appeals Tribunal (the Tribunal). She provided the Tribunal with a copy of the delegate’s decision record with her application. She was not represented in relation to this review.
On 10 November 2023 the Tribunal sent the applicant a ‘pre-hearing information form’ to complete. It requested her contact information, information about her ability to attend a hearing and invited her to provide more information and evidence about her claims for protection and family in Australia.
On 16 November 2023 the applicant provided the completed ‘pre-hearing information’ form to the Tribunal where she stated the following in relation to her claims for protection:
First of all the reason I applied a protection visa because I have been abused by my stepfather since I was 15 years old. I have got traumatized from that accident until now that I am really afraid to go back home in Malaysia. He was abused me for long time and it caused permanent scar on my back of my body. Since that I decided to migrate to Australia for a better life I am hoping he can not find me anywhere since I experienced traumatic event in my life I wish I could stay far away from home which is in Australia is the better place to stay as a freedom country, I am scared to report him to the police for what he have done to me. I feel safe when I arrived in Australia from day 1 till now far from everything that makes my life miserable and devastated. I am now have a family and I got one kids [age] years old, I got married in Australia in 2018 and currently we are in the process of separating as we discussed we both of us have to take turn to look after our daughter and support all her needs. In addition as I a person who responsibility to support my mother's medical care that she has stage 4 kidney disease, I have to send the money and pay for her medical costs every monthly so she can be treated well. I have to earn money for supporting them, it is really tough for me yet I am so grateful to be here, I feel safe and peaceful in Australia. I will attach all the evidence that I provide for the reference.
Attached to the above form were images of medical bills and a receipt from a medical centre and a hospital in Kuala Lumpur, issued in the name of [Ms A] (purportedly the applicant’s mother), dated in November 2023. This was for services such as dialysis and laboratory investigation in relation to [Ms A]. Also attached was a photo of the applicant’s purported scars on her back.
On 2 April 2024 the applicant appeared before the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. During the hearing the applicant provided oral evidence in relation to her background and claims for protection. She claimed the following at hearing:
·She was the only child of her mother.
·She never met her biological father, and he was not present when she was born, and her mother told her that he had left.
·Her mother then married her stepfather in 2011 who was physically abusive to her. Her stepfather is a [Occupation 1] She said her mother did not care about the abuse.
·She did not complete her final high school exams but worked, as her parents did not give her any money. She worked as a [Occupation 2] part time for two and a half years prior to coming to Australia.
·In April 2017 she ran away from home to escape the abuse and went and stayed with a friend in Kedah for four months prior to coming to Australia. Her stepfather went there to look for her but did not find her.
·She decided to come to Australia because she heard Australia protects women.
·She called her mother for the first time in 2023 because she missed her. Her mother is still with her stepfather. In 2024 her mother contacted her in secret asking for money for her dialysis as her stepfather did not give her mother money. She has since sent her mother money on five occasions.
·She is afraid if she returns to Malaysia her stepfather will hit her again and she is traumatised.
·She did not come to Australia to earn money but because she wanted a new life.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant provided a photocopy of her Malaysian passport and national identity card. On the basis of the evidence before me, I am satisfied she is a national of Malaysia and that Malaysia is the receiving country for the purpose of this assessment.
Claims regarding stepfather
For reasons I have outlined below, I am not satisfied of the credibility of the applicant’s claim to have had a stepfather who was physically abusive to her.
The information I have outlined below in paragraphs 20, 22, 24 and 26 was put to the applicant at hearing pursuant to s 424AA of the Act. I explained to the applicant that I was providing this information to her as I considered it would be the reason, or a part of the reason, for affirming the decision that is under review. I also noted to her that I had not made up my mind about this information at this stage and invited her to comment or respond to this information and noted that she could do so at hearing or seek additional time to do either.
In the applicant’s 2018 application for review to the Tribunal, the Australian residential address she provided in that form in [Town 1] (New South Wales) was the same address as three other people who had previous applications for review to the Tribunal regarding the refusal of their protection visa applications. This included two male applicants and one female. These people also had the same last name as the applicant, and I noted their names to the applicant. I also noted to the applicant that all three arrived in Australia on the same day as her. Further, that one of the male applicants also provided similar medical documents to the Tribunal that the applicant had in relation to her purported mother, claiming it was his mother. The female applicant also raised the nearly the exact same claims as the applicant regarding abuse from her own purported stepfather. Her written claims were nearly word for word as that of the applicant. I also noted to the applicant that their residential address in Malaysia was the same as the applicant. I noted to the applicant that this information was relevant because it indicates that these three people were her siblings. I noted that this may lead me to find that the applicant had not provided a credible account of her family background and may cause me to doubt the credibility of her protection claims.
In response, the applicant said that these people were not her siblings because there are many people who lived at that address (in [Town 1]). She also said that there were many people in Malaysia with the same family name. She said she knew the female applicant and did not know whether she had used her address, but this woman did ask the applicant for her address on one occasion. It appears she was referring to her Malaysian address. She also said the two male applicants were her ex-husband’s friends. She had no other comment or response in relation to this information and did not seek additional time to comment or respond.
I then noted to the applicant that it appeared the female applicant advised the Tribunal that she had booked a return flight to Malaysia in February 2023 and this information was relevant because she raised the same fears as the applicant regarding her own stepfather, and if I were to find that she was the applicant’s sister, then it appears she was willing to return to Malaysia and this may lead me to doubt the credibility of the applicant’s claims regarding her stepfather.
In response, the applicant said that this woman used the applicant’s claims for protection because she had asked the applicant’s ex-husband how to apply for a visa. She said she also used the applicant’s address in Malaysia as her ex-husband showed her the applicant’s application for protection and told her to copy it.
I then noted to the applicant that the Malaysian addresses for these three people was indicated on their Malaysian identity cards which were provided with their applications for protection.
In response, the applicant said she did not know about that. She had no other comment or response in relation to this information and did not seek additional time to comment or respond.
I also noted to the applicant that, in regard to one of the male applicants, at his Tribunal hearing, he outlined his family background and said his parents separated when he was 12 years old and did not claim his mother had remarried. I noted to the applicant that this information was relevant because, if I were to find he was her brother, then it indicates her mother did not remarry, which may lead me to doubt the credibility of her claim to have had a stepfather who abused her.
In response, the applicant said she did not know this man and he is a friend of her ex-husband and they used to live together. She further said people can make ‘fake ones’ such as a driver’s licence. When I asked her what she meant by this, she said that this man had asked a judge to grant him a visa and the two male applicants asked her ex-husband to show them how to apply for a visa. She had no further comment or response in relation to this information and did not seek additional time to comment or respond.
On the evidence before me I am not convinced of the applicant’s explanations in response to the above information that I put to her pursuant to s 424AA. It is plausible that someone can copy information from another person’s application for protection and live at the same address in Australia and not be related and that people in Malaysia can have the same last name. However, the applicant did not satisfactorily address the fact that these three people also arrived in Australia on the same day as her and that they provided credible evidence, via their Malaysian national identity cards, that they also lived at the same address as the applicant in Malaysia. I note that the applicant’s residential address was also noted in her Malaysian national identity card. Although she has claimed the two male applicants were friends of her ex-husband, her explanation also did not satisfactorily address how one of them came to have medical documents belonging to the applicant’s mother and why he provided them to the Tribunal, claiming it was also his mother.
On the evidence before me I do not accept the applicant’s evidence that these three people are not her siblings, and I am satisfied they are her siblings. I am not satisfied the applicant has provided a credible account of her family background.
At the hearing, I also noted to the applicant that the photo evidence she provided in relation to purported scars on her back from her stepfather’s abuse was not necessarily corroborative of her claims that they were incurred as a result of his abuse. In response she said it was from him. Her response did not overcome my concerns about the photo as she merely reiterated her claim.
I have considered the above concerns and that the female applicant, who I am satisfied is the applicant’s sister, was willing to return to Malaysia, and that one of the male applicants, who I am satisfied is the applicant’s brother, did not claim to have a stepfather in his evidence before the Tribunal. On the evidence before me, I am not satisfied of the credibility of the applicant’s claim to have had a stepfather nor that her stepfather abused her. I do not accept these claims.
I am not satisfied the applicant has a well-founded fear of persecution in Malaysia in relation to these claims. I am also not satisfied she will face a real risk of significant harm in Malaysia in relation to these claims.
Additional matters
During the hearing I asked the applicant if she had any other fears of returning to Malaysia and she said she did not. I then referred her to the information she provided to the Tribunal in the ‘pre-hearing information form’ where she also referred to having to support her child and mother’s medical needs. She reiterated that her only fear was in regard to her trauma relating to her stepfather’s abuse and she did not have any other fears. I accept her evidence in this regard, that she does not have any other fears. I accept that the information she provided in the above form about having to financially support her family do not relate a fear of returning to Malaysia.
The applicant has not raised any other claims for protection, and none arise on the material before me.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rebecca Mikhail
Member

ATTACHMENT 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). 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-LA, which are extracted in Attachment B.
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 Attachment B.
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.
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 3108

12 April 2024

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice