1817663 (Refugee)

1817663 (Refugee) [2024] AATA 2572 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Chika Okoro
CASE NUMBER:  1817663, 2010115
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Carolyn Wilson
DATE:14 June 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 June 2024 at 3:11pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – claimed fear of ex-husband – illegitimate child – child with disability – single mother – economic hardship – societal discrimination – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claims to be citizens of Malaysia, are a mother (applicant 1) and son (applicant 2). Applicant 1 applied for her visa on 19 February 2018, and made an application for her son applicant 2 on 11 October 2019. The delegate refused to grant the visas on the basis that the applicants could access adequate state protection such that there would not be a real chance or real risk of harm from the applicant 1’s ex-partner, and any economic hardship as a single mother would not amount to significant harm.
Applicant 1 appeared before the Tribunal on 6 May 2024 to give evidence and present arguments for her application but also as applicant 2’s guardian in his application. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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-LA, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants claim they are Malaysian citizens, and provided copies of their Malaysian passports and applicant 1’s national identity card (MyKad) as evidence of this. I accept they are Malaysian citizens and find Malaysia is their receiving country.
Applicant 1 arrived in Australia in November 2017 and applied for a Protection visa in February 2018. In 2019 her infant son applicant 2 was brought to Australia by the applicant 1’s mother and brother. Applicant 1 lodged a Protection visa application in October 2019 for her son.
Applicant 1 gave the following history and made the following claims in 2018:
·She is a Christian, ethnic Indian from Kuala Lumpur. She worked as an [Occupation 1] in Malaysia.
·She has one child born in [year] and was widowed in 2016.
·Her ex-husband threatened to send gangster to beat her because she was asking for financial support for their son. She told him she was taking the matter to court because he never provided any financial help, and he threatened her.
·She does not want to see her ex-husband again as he makes her anxious and depressed.
·The situation is very dangerous for her in Malaysia because there is no protection.
·She wants to work in Australia to support her son.
When applicant 1 applied for her son’s Protection visa in 2019 she repeated her claims and said she feared for her son’s safety as well as her own. She added that she could not provide a police report regarding her ex-husband’s threats as at that moment she was just thinking she needed to move out as soon as possible. She can provide her son’s birth certificate, but cannot provide a marriage certificate because she was her ex-husband’s second wife and certificates are not issued for second wives.
Prior to the hearing the applicants provided written submissions, a letter of support from applicant 1’s brother, and country information, including reports on the status of illegitimate children in Malaysia and reports on single mothers in Malaysia.
At the hearing in May 2024 applicant said she completed the visa applications herself, without any assistance. She said everything in there was correct. She confirmed the information she had put in her application regarding her education, including higher education, and employment history as an [Occupation 1]. In Australia she works as a [Occupation 2], and has done Certificate III courses in [Subject 1] and [Subject 2]. She confirmed she travelled to [Country 1] in 2017 prior to coming to Australia, and said she went to [Country 1] for a holiday with friends from high school.
Applicant 1 gave details of her family in Malaysia, which had not been included in the visa application. She said her father passed away in 2001. Her mother passed away a few years ago, and after the hearing provided a copy of her mother’s death certificate showing she had died in 2021. She has [number] brothers and 1 sister. Her sister lives in [Country 2] and her brothers all live in Malaysia. She is in contact with a younger brother who is divorced and lives in Kuala Lumpur. She said the other brothers are busy with their own lives.
Fear of harm from FK
Applicant 1 said she met FK at church in 2011. She did not know he was already married, and only found this out when she became pregnant. They would meet up 2 or 3 times a week, but did not meet each other’s families. They never spoke of the future or of plans to marry. He met her brothers once when she was fighting him for financial support. However they knew each other because they were distantly related. When asked how she could be in a relationship with someone from church for 4 years and not know he was married she said FK hid things from her. She also clarified they belonged to the same denomination, but did not attend the same physical church on a regular basis. They had met at the [venue] which they only attend annually or infrequently. When she got pregnant FK told her she must abort the child as he could not recognise it. He did not want people to know about their relationship or the child. He began threatening her that he would harm, even kill, her and/or the child, or arrange gangsters to do so. On one occasion he was physically aggressive when she was pregnant, hitting her in the stomach. He used violent verbal threats but did not physically attack her again and did not otherwise harm her son. She clarified that there was no court case filed against FK seeking child support. She merely wrote him a letter asking for financial support and personally delivered it to him with some of her brothers. She claims this was the last time she saw FK. She says she and their son were not harmed in the past because her brothers protected her, but if she goes back now FK will hear they have returned and they will not be safe from him. She fears FK may arrange to kidnap their son from school. She says FK cares more for his reputation than his son and will do whatever is needed to kill them both.
I asked applicant 1 about the information she included in her Protection visa application that her marital status was ‘widowed’ and the dates she gave for the start of the relationship and the date she became widowed. She said that must have been an error. She could not explain the relevance of the dates she had included in the application form of the relationship beginning 25/10/2014 and being widowed as 8/12/2016. She said the relationship commenced in 2011 and ended in [2015]. When asked why she referred to FK as her ‘ex-husband’ throughout her claims in the application form she said he was not her ex-husband but she did not know the English word to describe her relationship status so she just put ‘ex-husband’.
Applicant 1 says FK threatened her and their son because he did not want people to know about the relationship or to recognise the child. She claims FK was married to someone else and this is why he wanted this kept quiet. I find her evidence that she did not know from the time they started dating in 2011 until 2015 that FK was married is not credible. Considering her evidence that she met FK through church and their families were related, albeit distantly, I do not accept she would not have known if he was married. I note she said FK hid things from her, but I do not accept she could have consistently seen him 3 times a week for 4 years and not known his marital status. Given her evidence at the hearing that she commenced a relationship with FK in 2011, the dates she put in her application form for the dates of the relationship from 2014 to 2016 suggest this was the period for which they were married. Her use of the term ‘ex-husband’ throughout the application also suggests they were married. As discussed further below, the claim that he did not want to recognise the child is also inconsistent with FK being officially named as the father on the birth certificate. In all the circumstances, including the discussion below regarding applicant 2’s birth certificate, I find applicant 1 was married to FK.
Applicant 1 provided a letter from her brother in Malaysia dated 29 March 2024 in which he states he saw FK in August 2 years earlier. The brother states FK asked after applicant 1, said he does not want anyone to know applicant 2 is his son, said he would abuse applicant 2, mentioned that applicant 1 had filed a court case to gain financial support but he would not help them financially, and threatened that if they came back ‘I will still kill her using gangster’. The brother says that based on this conversation, is it not safe for the applicants to return to Malaysia. The letter of support from the brother touches on all of applicant 1’s claims regarding FK, which might support those claims, or might appear to have been written expressly to support the claims. As clarified at the hearing, there was no court case or legal action taken in Malaysia seeking financial support from FK. Applicant 1 said she merely wrote him a letter asking for financial support. The brother’s recollection in his letter that FK talked about a court case cannot be correct. I consider the contents in this letter have likely been drawn from applicant 1’s claims rather than a genuine conversation between the brother and FK two years ago. I give this letter little weight.
Applicant 1 claims that from 2015 she and applicant 2 received threats of physical harm form FK, including the threat of being killed by him or gangsters associated with him. She claims she did not go to the police to report this because she just wanted to leave as soon as possible, yet stayed another 2 years in Malaysia and left her son there for 4 years. I do not accept she did not have time to go to the police if she considered the threats were genuine. The threats of harm did not eventuate, except for the claim that on one occasion during her pregnancy FK physically assaulted her by hitting her in the stomach. There is no claim applicant 2 was ever harmed by his father, or gangsters, for the 4 years he lived in Malaysia. When applicant 1 left Malaysia, allegedly because she feared FK would harm them, she left applicant 2 with her mother. She even went on holiday to [Country 1] with friends in 2017, leaving applicant 2 in Malaysia. I consider if there was a real threat to applicant 2, applicant 1 would have brought him with her to Australia in 2017 or had her mother and brother bring him out much quicker than 2 years later. He had a passport issued [in] 2018, yet did not come to Australia until August the following year. If there was any intention by FK to harm his son, either by his own hand or through gangsters, he had 4 years to do so. Fortunately nothing occurred to applicant 2, or to applicant 1’s mother who cared for applicant 2. Applicant 1 says FK did not act because she was protected by her brothers. There is no suggestion her brothers themselves are gangsters or are in any way connected such as to intimidate FK or the gangsters he allegedly has contact with. If the fact of having [number] brothers was enough to stop FK from hurting either of them, the applicant still has those [number] brothers.
I consider it is farfetched that FK would target the applicants for harm now [number] years after applicant 2 was born. Nothing happened in the past to the applicants in Malaysia following applicant 2’s birth in [year], noting applicant 1 remained in Malaysia until November 2017 and applicant 2 until August 2019. Applicant 1 says she has had no contact with FK since 2015, and received no personal threats from him, either in person or by telephone or online, since 2015. I accept applicant 1’s relationship with FK has ended, whether that be through separation, or because he died as stated in her visa application. I am not satisfied there are any credible threats from FK to either applicant. I find the applicants do not face a real chance of harm from FK if they return to Malaysia now or in the reasonably foreseeable future.
Illegitimate child
Applicant 1 claims her son will face discrimination in Malaysia because he is an illegitimate child. I asked applicant 1 to explain how she had registered her son’s birth in Malaysia, and she said FK went with her to verify the child’s name. She said under Malaysian law she and FK could not marry as he already had a wife, but the law allowed him to be named as the father on their son’s birth certificate. FK came with her to do the registration to show his identity card and to ensure their son had his father’s name on the certificate so he would not face discrimination, when being enrolled at school for example. I asked why he would do so, when her claim was he wanted her to abort the child, had threatened to kill them both, and did not want people to know he’d had a child with her. She said she convinced him to sign it and her brothers also pushed him into doing so. I questioned whether he had in fact gone with her to register the birth, noting the certificate named only her as informant, and she was adamant he had.
Children are considered illegitimate in Malaysia when born outside of marriage. A legitimate child is one born or conceived during a valid marriage and where the husband is determined to be the legal father of the child.[1] Illegitimate children can take only their mother’s name and their births are registered without their biological father’s name being recorded. Illegitimate children have no ties with their father, and shall be maintained by their mother.[2]
[1] AN Roslin, NSAA Aziz, and FIM Shaharudin, Discrimination against an Illegitimate Child According to Law and Society, 2021 3 CLI 16; Section 112 Evidence Act (Malaysia), 1950.
[2] MRD Gopal, Does Illegitimacy Status of Children Matter A Review on Malaysian Perspectives, International Journal of Applied Psychology 2015, 5(4).
The Malaysia Births and Deaths Registration Act 1957 states:
13. In the case of an illegitimate child, no person shall as father of the child be required to give information concerning the birth of the child, and the Registrar shall not enter in the register the name of any person as father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and the person shall in that case sign the register together with the mother.
13A (1) The surname, if any, to be entered in respect of a legitimate child shall ordinarily be the surname, if any, of the father.
(2) The surname, if any, to be entered in respect of an illegitimate child may where the mother is the information and volunteers the information, be the surname of the mother; provided that where the person acknowledging himself to be the father of the child in accordance with section 13 requests so, the surname may be the surname of that person.
The Malaysian National Registration Department states that the registration of a child may be submitted by a parent, legal guardian, person having knowledge of the birth, or the mother and father of the child for registration of an illegitimate child. The person registering the birth must have the identity cards or passports of both parents and the marriage certificate (or death or divorce certificate if appropriate).[3]
[3] Official Web Portal, National Registration Department, Malaysia, Portal JPN - Normal Registration Of Birth (Peninsular) (accessed 3 May 2024)
On applicant 2’s birth certificate, applicant 1 is named as the only informant. The name, MyKad number, and other identifying information is listed for the biological father, and his name is given as the child’s surname. As reproduced above, there are strict requirements that an illegitimate child cannot have a father named on the birth certificate, or take the father’s name, unless the father attends to jointly sign the register with the mother. If this was a case where the father jointly attended with the mother to ensure the child took his name, I find this joint presentation would have been recorded on the birth certificate. That is, to make clear that both parents jointly attended and informed the Registrar that he was recognising his illegitimate child. However, the birth certificate records only applicant 1 as the informant.

The birth certificate is clear that only applicant 1 registered applicant 2’s birth. I find FK’s inclusion as father and his name being given to applicant 2, when FK was not present, indicates the parties were married. I find applicant 1 was able to register applicant 2’s birth herself with both parents named on the birth certificate because she was able to provide a marriage certificate and other relevant identity documents for FK. I do not accept FK was married to someone else, and I find applicant 1 and FK were in a spousal relationship. I therefore find applicant 2 is not an illegitimate child. It follows I find he does not face a real chance of harm as an illegitimate child, because he is not one.
In written submissions it was raised that the applicant’s daughter born in Australia may be treated as an illegitimate child in Malaysia and suffer discrimination for this reason. Her daughter is not an applicant before me. Applicant 1 has not claimed nor provided any supporting evidence to suggest she or applicant 2 would suffer discrimination as the parent/brother of a child who may be perceived as illegitimate in Malaysia. I am not satisfied either applicant faces a real chance of harm because they are related to a child born in Australia who may be perceived as illegitimate.
Single mother
I accept if the applicants return to Malaysia applicant 1 will be raising her 2 children as a single mother for the reasonably foreseeable future. In addition to applicant 2, she has a daughter born in [year] in Australia, from her relationship with a [nationality] man LA. Applicant 1 says LA has been in Australia since around 2006 and she believes he is the holder of a Bridging visa. She has not made an application for a Protection visa on the daughter’s behalf, and the daughter is not an applicant in this case. She says she finally separated from LA in April 2024, and that during the relationship LA had been violent towards her. Applicant 1 had provided evidence she took out an intervention order against him in 2022. They maintain contact because of their daughter.
Applicant 1 claims she fears returning to Malaysia as a single mother because she will face both economic hardship and societal discrimination. She says she will be unable to work in Malaysia as she will need to stay home with her son, and may also be discriminated against in employment because she is a single mother. She says because of her Indian ethnicity she is not entitled to welfare and support given to ethnic Malays. She says her son will not get the specialist education and support he has received in Australia. She is concerned his health will be impacted and he will need to learn another language. Until last month her son was receiving support from the NDIS but she has been told the law has changed and he is no longer eligible.[4] She claims that in Malaysia he will not be able to attend school because they do not have special classes for children with disabilities. When she lived in Malaysia she had a good government job as an [Occupation 1] and had her mother helping her by caring for applicant 2. Now that her mother has passed away there will be no one to care for him, so she must stay home. As a single mother everyone in her building and local community will see there is no father in the household and they will talk about her and be abusive to her and her children
[4] There has been no change in the law. The NDIS Act 2013 specifies at s 23 persons accessing the NDIS must be Australian citizens, holders of a permanent visa, or special category visa holder who is a protected SCV holder. It appears most likely applicant 2 was granted access to the scheme in error.
The applicants did not provide any country information to support the claim that applicant 2, with his intellectual disability, would be denied access to education in Malaysia. DFAT reports primary school education is compulsory in Malaysia.[5] The Malaysian Persons with Disabilities Act 2008 ensures the right to access education for children with disabilities, and a ‘zero reject’ policy stipulates no child can be turned away from education. Special education schools do exist, however UNICEF reports many children with disabilities do not realise their right to a quality education.[6] I do not accept applicant 2 will be excluded from school, nor that there are no special education schools. I note the applicants are from Kuala Lumpur and not from a regional or rural area where there may be less access to special schools.
[5] DFAT, Country Information Report Malaysia, 29 June 2021.
[6] UNICEF, Issue Brief: Children with Disabilities in Malaysia, 01 December 2019.
DFAT reports single mothers in Malaysia may not be able to work due to costs associated with childcare.[7] Applicant 1 has demonstrated her ability to juggle family responsibility with work as a single mother in Australia, and has even completed training courses. Applicant 1 is tertiary educated with qualifications and experience in a variety of jobs, including [Occupation 1] and [Occupation 2]. She was employed in a government job in the past and there is no claim that she faced discrimination from her employer at that time for reason of being a single mother. However, if applicant 1 is unable to work, she will be able to access welfare in Malaysia. Although government assistance is modest, she would also have access to additional support for applicant 2. She claimed Indian Malaysians are not entitled to support, but there is no country information before me to indicate ethnic Indian Malaysian citizens are denied access to welfare. DFAT reports Indian Malaysians can face low levels of discrimination in accessing tertiary education or government employment[8] however applicant 1 did not experience such discrimination in the past. I do not accept applicant 1 would be denied the capacity to earn a livelihood or denied the capacity to subsist because she is a single mother.
[7] DFAT, Country Information Report Malaysia, 29 June 2021.
[8] DFAT, Country Information Report Malaysia, 29 June 2021.
Applicant 1 says she and her family will face stigma and abuse from the local community because she is a single mother. She said it will be obvious to people that there is no husband/father in the household and people will talk about them. There is no evidence her situation as a single mother in the past gave rise to stigma or abuse amounting to serious harm. I accept she may experience some stigma and verbal comments on the lack of a husband/father. I do not accept the stigma or abuse they may experience will involve any threat to their lives, or significant physical harassment or ill-treatment, or denial of their capacity to subsist. Whilst the list of serious harm in s 5J(5) is illustrative, not exhaustive, I am not satisfied the type of stigma, gossip, negative comments, and/or verbal abuse the applicants fear amount to serious harm constituting persecution as contemplated by the Act. I do not accept they face a real chance of serious harm from the community because they live in a household without a husband/father.
For these reasons I find the applicants do not face a real chance of serious harm for reason of applicant 1 being a single mother.
For these reasons I find the applicants’ fear of persecution is not well-founded, and I find they do not meet the refugee criterion.
I have considered whether the applicants face a real risk of significant harm if they are removed to Malaysia. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. Treatment that would meet these definitions involve an act or omission that is inflicted with a subjective intention to bring about the suffering caused by their conduct.
Applicant 1 says she and applicant 2 will be more vulnerable to depression and stress as a single parent family. She provided a number of articles dated from 2011 to 2022 regarding single mothers in Malaysia. She relies on findings by researchers that single mothers face a higher risk of depression. One study in 2022 found the proportion of depression among Malay single mothers was 20.2%, with the risk increased for those with a history of depression. No medical evidence was provided to suggest applicant 1 has been diagnosed with or treated for depression or any other mental illness in the past. The study also reported that nonetheless not all single mothers developed depression and that some coped very well with their predicament.[9] Supports available to single mothers include social and welfare supports, but education of the mother and a support system are also key.[10] Applicant 1 is well-educated. Although she has lost one of her main supports, her late mother, she has a large family with [number] brothers in Malaysia. She said her brothers are busy with their own lives but is close to at least 1 brother who has helped her in the past, including bringing her son applicant 2 to Australia in 2019.
[9] L Yee Theng, R Abdul Rahman, and SB Ismail, Determinants of Depression among Malay Single Mothers Living in Community in Perak Malaysia, The Malaysian Journal of Medical Sciences, 21 April 2022.
[10] SRA Hamid and S Salleh, Exploring single parenting process in Malaysia: Issues and coping strategies, 2013.
I consider it speculative that either applicant may develop depression, anxiety, or other mental illness as a consequence of living in a single mother household in Malaysia. Even if I was satisfied there was a real risk of developing a mental illness, I note the Federal Court of Australia has confirmed that the definition of s 36(2A) is framed in terms of harm suffered because of acts of other persons. Any harm resulting from the act of removal from Australia or arising from a mental illness on return to a receiving country is not significant harm as defined in the Act.[11]
[11] SZRSN v MIAC [2013] FCA 751 and SZRSN v MIAC [2013] FMCA 78; GLD18 v MHA [2020] FCAFC 2.
I acknowledge applicant 2 lives with a disability and claims were made that he will be denied an education. For reasons given above I do not accept this claim. On the information before me I do not accept there is a real risk unknown persons would intentionally inflict cruel or inhuman treatment or punishment or degrading treatment or punishment on applicant 2 for reason of his disability. I do not accept applicant 2 faces a real risk of significant harm because he lives with a disability.
I accept the applicants may experience some stigma or verbal comments because for the reasonably foreseeable future they will live in a single parent household. However I am not satisfied any stigma, comment, or other negative behaviour they may experience would involve the level of pain, suffering or humiliation required to amount to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, or otherwise amount to significant harm as defined in the Act.
I have found the applicants do not face a real chance of harm from FK or because applicant 1 is a single mother. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold. For the same reasons given above, I find the applicants do not face a real risk of significant harm in Malaysia from FK or because applicant 1 is a single mother. I have found applicant 2 is not an illegitimate child and it follows I find he does not face a real risk of harm as an illegitimate child when I do not accept he is one.
I find there are not substantial reasons for believing, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, that there is a real risk the applicants will suffer significant harm for any of the reasons claimed.
CONCLUSION
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 applicants protection visas.
Carolyn Wilson
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 2572

14 June 2024

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