1820471 (Refugee) - [2024] AATA 4274

1820471 (Refugee) [2024] AATA 4274 (17 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820471

COUNTRY OF REFERENCE: Malaysia
MEMBER:Sophia Panagiotidis
DATE:17 June 2024

PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 June 2024 at 10:58am

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 27 February 2018. The applicant’s claim in the protection visa application concerned his sexuality. The delegate was not satisfied that the applicant had established his claims and found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicant will suffer significant harm.
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…

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.

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Details

Case: [2024] AATA 4274
Decision Date: 17 June 2024

CaseChat Overview and Summary

The applicant, a citizen of Malaysia, sought a protection visa, claiming he feared persecution in Malaysia due to his alleged homosexuality. The dispute before the Tribunal concerned whether Australia had protection obligations towards the applicant under either the refugee or complementary protection criteria.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa, specifically whether he was a refugee within the meaning of the *Migration Act 1958* (Cth) due to a well-founded fear of persecution for reasons of his membership in a particular social group (homosexuals), or alternatively, whether he faced a real risk of significant harm as a necessary and foreseeable consequence of being removed to Malaysia.

The Tribunal affirmed the decision not to grant the protection visa. The applicant's claims regarding his sexuality were found to be not credible, as he later stated he was not gay and had applied for the visa solely to remain in Australia due to stress and difficulty finding employment. The Tribunal accepted that the applicant was a Malaysian citizen and that Malaysia was the receiving country. Given the applicant's disavowal of his homosexuality and his stated reasons for wishing to remain in Australia being economic hardship and stress, the Tribunal concluded that he did not have a well-founded fear of persecution for reasons of his sexuality, nor did he face a real risk of significant harm upon return to Malaysia. The Tribunal also noted there was no suggestion the applicant qualified as a member of the same family unit as a person who met the protection criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal finds that the applicant is a citizen of Malaysia and has assessed his claims against Malaysia as the country of his nationality and the receiving country.The applicant’s background The applicant confirmed the following personal information during the hearing. He confirmed his date of birth in Terengganu where he lived until he moved to Kuala Lumpur for one year prior to coming to Australia. The applicant identifies as being of Malay ethnicity and is a Muslim. The applicant confirmed he completed [grade] at primary school and did not undertake any secondary education. He worked at various jobs including [specified jobs] in his home area and in [industry 1]. The work was not constant. His family owns a [business 1] and he worked for them as well when he did not have outside work. His parents who own a [business 1] in his home area are in Malaysia. He has [specified family members] who also live in Malaysia. [Some siblings] married and the [other] is still studying. The applicant was married for two years but he divorced before coming to Australia. There is one child of the marriage, a daughter who is [age] years old and lives with her mother. He said he is not sure where they are and he has heard that she has remarried. The applicant confirmed he arrived in Australia [in] December 2017 as a visitor. He has had work since coming to Australia. Tribunal accepts the above matters to be true.The applicant’s claims for protection The claims as set out in the protection visa application concern the applicant’s sexuality. He has claimed he is a homosexual and Malaysia does not encourage homosexuality as it is an Islamic country and this is prohibited. He claims to have experienced harm from a family member because of this and he did not seek help because homosexuality is strongly prohibited. In the pre-hearing information form completed and provided to the Tribunal on 12 December 2023, the applicant provided further information. He states that political issues and high corruption has caused the economy to be unstable and it was difficult to find a job and the salary was low. The applicant was asked if he completed his protection visa application himself. He said a friend completed this and he paid him. He has lost contact with this friend. He really did not know what was included in the application apart from his claiming to be part of the LGBTQI community. He said that the information is essentially wrong and he is not gay. During the hearing, when the applicant was asked to clarify his claims for protection and why he feared returning to his country, he said he did so because he did not want to return to Malaysia. He applied for the visa because it was the only way he could stay here. His reasons for not wishing to return are that he was stressed and he could not find a job. He was made redundant and he had to find other work. He did not want to work for his family anymore and he was more or less homeless. The applicant said his family had a [business 1]. His father is over [age] years old and his mother is over [age]. When he worked in their business he was not paid much and they were just using his time. His relationship with his parents is not that close and he seldom calls them. He came to Australia because he wanted a new start and to reduce the stress he was under. After he arrived his levels of stress decreased. It was harder to find work in Malaysia than Australia.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade 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 the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or as a member of the same family unit as such a person and, and that person holds a protection visa of the same class. The relevant law is set out in the attachment. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant travelled to Australia [in] December 2017 on an apparently genuine Malaysian passport and identity card, copies of which are contained on the Department of Home Affairs’ file (the Department). He has at all times stated he is a citizen of Malaysia, and he has been assessed on that basis by the Department. The Tribunal finds that the applicant is a citizen of Malaysia and has assessed his claims against Malaysia as the country of his nationality and the receiving country.The applicant’s background The applicant confirmed the following personal information during the hearing. He confirmed his date of birth in Terengganu where he lived until he moved to Kuala Lumpur for one year prior to coming to Australia. The applicant identifies as being of Malay ethnicity and is a Muslim. The applicant confirmed he completed [grade] at primary school and did not undertake any secondary education. He worked at various jobs including [specified jobs] in his home area and in [industry 1]. The work was not constant. His family owns a [business 1] and he worked for them as well when he did not have outside work. His parents who own a [business 1] in his home area are in Malaysia. He has [specified family members] who also live in Malaysia. [Some siblings] married and the [other] is still studying. The applicant was married for two years but he divorced before coming to Australia. There is one child of the marriage, a daughter who is [age] years old and lives with her mother. He said he is not sure where they are and he has heard that she has remarried. The applicant confirmed he arrived in Australia [in] December 2017 as a visitor. He has had work since coming to Australia. Tribunal accepts the above matters to be true.The applicant’s claims for protection The claims as set out in the protection visa application concern the applicant’s sexuality. He has claimed he is a homosexual and Malaysia does not encourage homosexuality as it is an Islamic country and this is prohibited. He claims to have experienced harm from a family member because of this and he did not seek help because homosexuality is strongly prohibited.

Decision

Reasons for decision

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.Sophia PanagiotidisMemberATTACHMENT - EXTRACT FROM MIGRATION ACT 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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 issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or as a member of the same family unit as such a person and, and that person holds a protection visa of the same class. The relevant law is set out in the attachment. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant travelled to Australia [in] December 2017 on an apparently genuine Malaysian passport and identity card, copies of which are contained on the Department of Home Affairs’ file (the Department). He has at all times stated he is a citizen of Malaysia, and he has been assessed on that basis by the Department. The Tribunal finds that the applicant is a citizen of Malaysia and has assessed his claims against Malaysia as the country of his nationality and the receiving country.The applicant’s background The applicant confirmed the following personal information during the hearing. He confirmed his date of birth in Terengganu where he lived until he moved to Kuala Lumpur for one year prior to coming to Australia. The applicant identifies as being of Malay ethnicity and is a Muslim. The applicant confirmed he completed [grade] at primary school and did not undertake any secondary education. He worked at various jobs including [specified jobs] in his home area and in [industry 1]. The work was not constant. His family owns a [business 1] and he worked for them as well when he did not have outside work. His parents who own a [business 1] in his home area are in Malaysia. He has [specified family members] who also live in Malaysia. [Some siblings] married and the [other] is still studying. The applicant was married for two years but he divorced before coming to Australia. There is one child of the marriage, a daughter who is [age] years old and lives with her mother. He said he is not sure where they are and he has heard that she has remarried.