1832964 (Refugee)

1832964 (Refugee) [2024] AATA 2601 (27 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Shabnum Cassim
CASE NUMBER:  1832964
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Victoria Price
DATE:27 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 27 June 2024 at 1:22pm

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Tamil ethnicity – religion – Hindu faith – victim survivors of family violence perpetrated by their father – applicant one faces a real chance of treatment amounting to serious harm, including significant physical harassment and ill-treatment from her father – a particular social group – women in Malaysia – applicant two is wholly or substantially reliant on applicant one for financial support, as well as psychological and physical support – applicant has a well-founded fear of persecution – relocation is not reasonable – membership of the same family unit – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 423, 499
Migration Regulations 1994, r 1.03, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

There are two review applicants in this matter (collectively ‘the applicants’). The first named applicant (applicant one) is a woman aged [age]. She states that she is a national of Malaysia, is of Tamil ethnicity and follows the Hindu faith.
The second named applicant (applicant two) is the younger brother of applicant one. He is currently aged [age]. He states he is a Malaysian national, of Tamil ethnicity and that he follows the Hindu faith.
The applicants arrived in Australia on [date] November 2017. They lodged applications for a protection visa with the Department of Home Affairs (the Department) on 24 April 2018.
On 30 October 2018 the delegate of the Minister refused to grant the visas to the applicants under s 65 of the Migration Act 1958 (Cth) (the Act), finding they did not satisfy the requirements of s.36(2) of the Act. This is an application for review of that decision.
The applicants appeared before the Tribunal on 28 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s mother who also resides in Australia and has an ongoing protection visa application, attended the hearing to support the applicants.
The applicants were represented in relation to the review and the representative attended the hearing.
CLAIMS AND EVIDENCE
The applicants’ claims for protection were set out in their protection visa application, in applicant one’s written statement to the Department, and in their written and oral evidence to the Tribunal.
In summary, the applicants claimed that their father was abusive to applicant one and that he would kill or otherwise harm her on return to Malaysia.
In addition to the protection visa application and the applicants’ identity documentation, the following supporting material was before the Tribunal:
·Applicant one’s statement to the Department dated 2 February 2018.
·Submission dated 24 April 2018 from the Asylum Seeker Resource Centre including a newspaper article regarding the applicants and their father, dated 16 April 2017.
·An updated statutory declaration by applicant one dated 3 May 2024.
·Statutory Declaration made by applicant two on 13 June 2024.
·Legal submissions dated 21 May 2024 and 14 June 2024.
At the hearing the applicants confirmed their respective identities and familial and biographical information. They also provided further details regarding their claims for protection. This evidence is discussed below.
Applicants’ background and protection claims.
Applicants one and two were born in [Region 1] and resided there with their elder sister and parents. Their parents separated in 2012 due to family violence. The applicants moved to Kuala Lumpur with their mother. However, after their mother left Malaysia and moved to Australia, they returned to reside with their grandmother in [Region 1].
When applicant one was about [age] years old, their father, who also resided in [Region 1] near to their grandmother, came to collect them. He is an [Country 1] national and had been residing in Malaysia as the spouse of a Malay national. However, after his former wife refused to continue sponsoring him, he needed to regain custody of his children to remain in the country.
The newspaper article provided by the applicants pertained to his efforts to remain in Malaysia, and although the article appeared to show that applicants one and two were residing with him and supporting him, this was not true. He was manipulating them and told them what to say to reporters. He made them pose as a happy family for the photograph appearing in the paper. Their father was successful and is now able to remain in Malaysia.
After their photographs and name appeared in the paper, applicant one was stalked by an unknown person who followed her home from school. She never found out who this person was.
Their elder sister refused to return to their father’s home and eventually moved to a different area. Their living conditions with their father were less than ideal. They resided in a share home with five other adult males, friends of their father. Their father was a gambling addict and drank a lot of alcohol. He was controlling, abusive and neglectful. The applicants often went without food, and sometimes their father’s housemates had to make them meals.
Applicant one had to share a room with her father and applicant two and eventually, several of her father’s friends began to sexually harass her, including filming her in the shower. Their father did not believe applicant one when she told him about this and hit her.
The applicants were not allowed outside the home, except to attend school. Their father refused to pay for applicant one’s additional tuition and they were not allowed to see their friends. Applicant one was regularly beaten by their father, though applicant two was spared this treatment and because he was a boy, he was generally treated better than applicant two. Applicant two was not allowed to get medical attention for injuries sustained during her beatings. She did not seek police assistance because she did not think the authorities would not believe her and, even if they did, they would send her back to her father who would punish her.
Applicant one overhead a conversation between their father and uncle, who resided in [Country 1]. Their father wanted his brother to forcibly take applicant two back to [Country 1] for an arranged marriage. At that point she contacted her grandmother for assistance to get them both away from her father. Her grandmother arranged for them to come to Australia and reunite with their mother.
The applicants completed high school in Australia. Applicant one undertook [studies] after finishing high school. Applicant two is not currently studying or working. They reside with their mother in a rental property. Their mother does not work, and the family are solely reliant on applicant one’s income from her part time employment in a [workplace].
Her father has since taken out loans with illegal money lenders, in name of their elder sister. Their sister is being harassed by these lenders, as well as their father who asked for her help to find the applicants on [social media]. Further, he harassed their grandmother regarding their whereabouts, eventually taking lawyers to her home to force her to reveal their location. She told him they are in Australia but did not give him their address or contact details.
Applicant two did not believe that their father would harm him in any way. He had not physically assaulted him in the past because he is male, and now he is older, and it would be harder for his father to hurt him. However, both applicants believed he would assault or even kill applicant one. Alternatively, her uncle may take her back to [Country 1] for an arranged marriage.
If they had to return to Malaysia, they would live with their grandmother. However, as she resides near their father, he will learn of their return and come and find them. They cannot relocate within Malaysia because their father would find them, he has been able to find and harass their sister even after she moved away. They do not think the authorities can help them.
Application of s 423A of the Act.
In accordance with s 423A of the Act, if the applicant raises a claim or presents evidence that was not raised before the primary decision was made, and the Tribunal is satisfied that there is not a reasonable explanation for failing to do so, the Tribunal is to draw an unfavourable inference regarding the credibility of that claim or evidence.
To the extent that the applicants provided additional claims and evidence to the Department that were not before the primary decision maker, I note that they did not have the opportunity to provide oral evidence to the Department. Moreover, they had a new representative at the Tribunal who provided further legal submissions, including at the behest of the Tribunal. I consider there are reasonable explanations. I am not satisfied that there are not reasonable explanations for their failure to provide this material to prior to the making of the primary decision. Section 423A does not apply.
OVERVIEW OF 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.
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 (DFAT)[1], 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.
[1] Department of Foreign Affairs and Trade,' Country Information Report Malaysia', 24 June 2024, (DFAT 2024 Malaysia Report).
I note that the most recent DFAT report on Malaysia became available after the hearing. However, the content is generally consistent with the matters discussed at the hearing, and it does not appear to raise new or additional issues for consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicants will be persecuted on return to Malaysia or, if not, whether there is a real risk they will suffer significant harm if removed from Australia to that country.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference, area of return and s 36(3).
The applicants provided identity documents to demonstrate their Malaysian nationality. I accept they are nationals of Malaysia.
The applicants’ father is a national of [Country 1] and I have considered whether the applicants also hold [Country 1] nationality. Information from DFAT states that the [Country 1] Constitution does not permit dual citizenship.[2] [Deleted]. [3]
[2] [Deleted].
[3] [Deleted].
On the evidence, I find that the applicants do not hold [Country 1] nationality, and that they are not dual nationals of [Country 1] and Malaysia. I find that Malaysia is their receiving country.
The applicant’s primarily lived in [Region 1] during their residence in Malaysia. Their grandmother who assisted to raise them, and with whom they remain in contact, resides in [Region 1] and their evidence at hearing was that, if required, they would live with her on return. I find that [Region 1] is the area to which they would return in the future.
I have found above that the applicants do not hold [Country 1] nationality. However, as residents of Malaysia they have a right to enter Singapore for a 30 day period as tourists. [4] In WAGH v Minister for Immigration & Multicultural & Indigenous Affairs[5] the court found that, while not impossible for the term resident to include a tourist, generally ‘a tourist may stay overnight, or for a time in a country, but that country would not be his or her place of abode, even temporarily.’[6] I accept the applicants have a right to enter Singapore but I am not satisfied that a tourist visa, which requires them to return to Malaysia at its conclusion, amounts to a right of ‘residence’.
[4] Singapore visa requirements for Malaysian citizens (embassies.net)
[5] [2003] FCAFC 194.
[6] WAGH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194 at [65].
On the evidence before me, I find that the applicants do not have a right to enter and reside in Singapore as that term is expressed in s 36(3). Nor is there anything to suggest they otherwise have a right to enter and reside in any other country. I find that s 36(3) does not apply in the circumstances of this case.
Refugee Assessment
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.
Applicants’ credibility
The applicants’ evidence was consistent, clear, highly detailed, and presented in a manner indicative of lived experience. Their evidence is also supported by the newspaper article they provided, as well as independent information on the experiences of women in Malaysia, which is discussed further below. I find they are credible and reliable witnesses.
Assessment- past and future harm.
I accept the applicants are of Tamil ethnicity and that they follow the Hindu faith. Based on their oral and written evidence, which I have found to be credible, I accept that: their parents separated in about 2012 due to family violence; they resided briefly with their mother in Kuala Lumpur before moving in with their grandmother in [Region 1] after her departure from Malaysia. I accept that their father sought to regain custody of the applicants for the reasons set out above.
I accept that the applicants were neglected, resided in poor conditions, and that their father restricted their movements. In respect of applicant one, I accept that she was beaten by her father, sexually harassed by his housemates, and that her father wanted her uncle to forcibly take her back to [Country 1] for an arranged marriage. I find that applicants one and two are both victim survivors of family violence perpetrated by their father. However, I must now consider whether the applicants face a real chance of harm from him on return to Malaysia in the future.
Domestic and family violence is widely acknowledged to disproportionately affect women and girls.[7] Broadly, high rates of gender-based violence are found to occur where women are accorded less value and access to power than men.[8] Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independent in public and private life and social attitudes condoning violence against women.[9]
[7] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021) (AIJA Bench Book).
[8] AIJA Bench Book.
[9] ‘Our Watch, Change the Story: A Shared Framework for the Primary Prevention of Violence against Women in Australia (2nd ed, 2021) 36.
In Malaysia, women are disadvantaged by patriarchal attitudes regarding the place of women in society. While discrimination against women is banned under the Constitution, DFAT states that discrimination on the basis of sex and inequality persist for women and girls.[10] Conservative, cultural, religious and social practices, as well as a lack of resources to support working mothers, limits the ability of women to participate in civil society, government and business.[11] Women have low representation within elected government positions, holding only 16.1 per cent of Cabinet positions as of early 2024.[12] Further, Malaysia’s female workforce participation are among the lowest in Southeast Asia, despite the law requiring employers to pay male and female workers equal pay for equal work.[13] As of 2022, women occupied 53 per cent of the labour work force, in comparison in 2021, there was an 81 per cent participation rate for men.[14]
[10] DFAT 2024 Malaysia Report, at [3.111]; and DFAT 'Country Information Report Malaysia', 29 June 2021 (DFAT 2021 Malaysia Report) at [3.119] at [3.119].
[11] DFAT 2024 Malaysia Report at [3.111]; and DFAT 2021 Malaysia Report) at [3.119].
[12] ‘Where are the women in Malaysia's Cabinet? The Star, 5 January 2024; and DFAT 2024 Malaysia Report at [3.112].
[13] World Bank, ‘Toward Better Economic Opportunities for Women: Lessons from Malaysia’, 21 April 2020; and DFAT 2024 Malaysia Report at [3.113].
[14] DFAT 2024 Malaysia Report at [3.111]; and DFAT 2021 Malaysia Report at [3.120].
Malaysian government rhetoric and policies such as dress codes and other modesty policies reinforce traditional roles and make women vulnerable to gender-based violence. For example, in 2016 a University in Sarawak stipulated that female graduates should wear clothes covering their bodies from the neck to the ankle and imposed fines for violations of the code, and information indicates that Muslim women who do not wear the headscarf or otherwise conform to conservative religious notions of modesty, are often subject to shaming in public and on social media.[15] Muslim woman also have less access to divorce rights: men can unilaterally divorce their wives but, generally, women cannot do the same.[16]
[15] United States Department of State (USDOS), Report on International Religious Freedom: Malaysia’, 26 June 2024 (USDOS 2024 Religious Freedom Report), page 2; DFAT 2021 Malaysia Report at [3.39]; and Women’s Aid Organisation and Joint Action Group for Gender Equality, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019) 147-148 and 160.
[16] DFAT 2024 Report at [3.111].

In 2016, a government official, addressing increasing divorce rates, publicly advised that women ‘should fulfil their “true functions as wife and mother”’.[17] Further, in response to increasing rates of domestic violence during the COVID-19 pandemic, women were advised by the government to: refrain from nagging their husbands; ‘giggle coyly’; and wear make-up at home.[18] Women were also advised to ‘refrain from being ‘sarcastic’ if they asked for help with household chores. [19] While the government subsequently apologised for some of these comments, they nonetheless demonstrate the entrenched patriarchal views held in Malaysian society.
[17] Women’s Aid Organisation and Joint Action Group for Gender Equality, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019) 147-148.
[18] Women’s Aid Organisation and Joint Action Group for Gender Equality, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019) 160.
[19] DFAT 2021 Malaysia Report at [3.130].
The government strengthened its domestic violence legislation in recent years, extending the definition of domestic violence to include family members, and enhancing protections for survivors including emergency, interim, and standard protection orders, breaches of which are punishable by a fine and/or imprisonment for up to two years.[20] There are also support services for referrals and crisis intervention, counselling and legal assistance and One Stop Crisis Centres (OSCCs) which are now in 102 Malaysian hospitals nationwide.[21]
[20] DFAT 2024 Malaysia Report at [3.120] –[3.121]; and DFAT 2021 Malaysia Report at [3.125].
[21] DFAT2024 Malaysia Report at [3.122].
Human Rights agency, Suaram stated that at the government also passed the Anti-Stalking bill in March 2022.[22] This criminalises the act of harassment which includes ‘following a person in any manner or by any means, communication or attempting to communicate with a person in any manner of by any means, loitering at the place of residence or business of a person and giving or sending anything to a person in any manner or by any means’ and the offence is punishable of imprisonment up to 3 years or a fine or both.[23]
[22] Suranam, ‘Malaysia Human Rights Report 2022’, published 2023.
[23] Suranam, ‘Malaysia Human Rights Report 2022’, published 2023, page 102.
However, despite these developments, violence against women remains a significant problem.[24] It appears that these laws have not altered the gender norms and views in society. In 2023, the United States Department of State (USDOS) Human Rights Report cited information from NGO, ‘Women’s Aid Organization’, that 9 percent of women who had ever been in a relationship experienced domestic violence and that such violence was symptomatic of entrenched gender inequality. Research by the NGO found that 53 percent of respondents believed domestic violence was a ‘normal’ reaction to stress or frustration, and 43 percent believed a woman could so anger a man that he hit her without meaning to, suggesting a culture deeming such violence acceptable ‘when perceived as an emotional gesture, or in the event the victim has behaved in a way that triggers the abuse’.[25]
[24] DFAT 2024 Malaysia Report at [3.115].
[25] USDOS, ‘Country Reports on Human Rights Practices for 2022 - Malaysia', 20 March 2023, page 24.
The Women’s Aid Organization recorded 2,815 cases of domestic violence between 2021 and March 2023, though as matters of family violence are underreported, the true figures are likely to be significantly higher.[26] DFAT recently assessed that women and girls in Malaysia face a moderate risk of gender-based violence, including in the form of domestic violence.[27]
[26] DFAT 2024 Malaysia Report at [3.115].
[27] DFAT 2024 Malaysia Report at [3.125].
Suaram stated in their 2023 report that there is a deeply entrenched culture of victim-blaming, and traditional patriarchal and gender stereotypes that legitimise violence, as well as the stigma of disclosing and seeking external help for experiences of violence.[28] Suaram states that this culture remains pervasive and is actively perpetuated at all levels.[29] In relation to law enforcement the report noted that:
In just three months from March to May 2022, there were media reports about police officers refusing to accept reports from domestic violence survivors, trivialising the experience of a survivor of intimate partner violence whilst unsolicitedly commenting on the lack of “intention” by the perpetrator to physically batter her, as well as victim-blaming a survivor of stalking.[30]
[28] Suranam, ‘Malaysia Human Rights Report 2022’, published 2023, page 114.
[29] Suranam, ‘Malaysia Human Rights Report 2022’, published 2023, page 114.
[30] Suranam, ‘Malaysia Human Rights Report 2022’, published 2023, page 114.
In this case, I accept that the applicants will be returning to [Region 1] where their grandmother has a home. I also accept that their father lives nearby, and that he has constantly harassed their sister and grandmother trying to find the applicants. I find that on return to Malaysia there is a real chance that their father will learn of their return, and that he will try to find them. In the case of applicant one, given his past conduct towards her, I accept she faces a real chance of treatment amounting to serious harm, including significant physical harassment and ill-treatment from her father in [Region 1].
Given his attempts to locate and search for them, and that he has recently tracked down their sister to a different area of Malaysia, I find that he will seek to find them elsewhere in Malaysia. I find that relocating within Malaysia would not ameliorate the chance of harm to applicant one. I find that the real chance of serious harm arises throughout the country. I also find that the harm involves systematic and discriminatory conduct on the part of her persecutor.
I find that ‘women in Malaysia’ constitutes a particular social group as that term is defined: and find that the shared characteristic is their gender, not a shared fear persecution. On the country information above, I find that the deeply entrenched gender stereotypes, patriarchal and traditional views legitimise violence against women at the societal and state level. I find that family and domestic violence against women is Malaysia is gender based. In circumstances where violence against women is normalised at the societal level, I find that the essential and significant reason the applicant faces harm from her father is because of her gender and her membership of the particular social group of ‘women in Malaysia’.
As noted above, there is legislation in place to protect victim survivors of gender-based violence. However, DFAT states that in practice, police commonly return survivors of domestic and family violence to the perpetrator and/or place pressure on victims to drop the matter. [31] Police often fail to follow up repots of gender-based violence, and it is not uncommon for a women to be denied a police report, not to be informed about whether the offender has been called and not advised of any next steps within the legal process.[32] Information also indicates that the judiciary receives little or no training on the application of relevant laws.[33] Suaram reported that the response of the police to matters of gender insensitivity, has been ‘short-sighted at best’. They investigate the allegations, and in the case of domestic violence, reiterate the issuance of case management and disciplinary action instructions for domestic violence cases. [34] Suaram states that it is unclear whether the police are taking broader institutionalised efforts to address these matters. [35]
[31] DFAT 2024 Malaysia report at [3.117] – [3.118].
[32] DFAT 2024 Malaysia report at [3.117] – [3.118].
[33] DFAT 2021 Malaysia Report at [3.129].
[34] Suranam, ‘Malaysia Human Rights Report 2022’, published 2023, page 114.
[35] Suranam, ‘Malaysia Human Rights Report 2022’, published 2023, page 114.
There are government and non-government bodies in Malaysia which provide shelters and assistance to victims.[36] However, the USDOS reported in 2024 that existing support mechanisms are inadequate.[37] NGOs reported that the government did not act in cases of domestic violence; victims must keep evidence, gather witness testimony, and ensure their own safety. The USDOS stated that in general, investigation into accusations of rape and gender-based violence was inadequate, and there was a lack of enforcement of relevant laws.[38]
[36] DFAT 2024 Malaysia Report at [3.122] –[3.123].
[37] US Department of State, ‘Country Reports on Human Rights Practices for 2023 - Malaysia', 22 April 2024 (USDOS 2024 Report) page 16-17.
[38] USDOS 2024 Report page 16-17.
Overall, I find that despite some improvements, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely. I give weight to DFAT’s assessment that while available, state protection is often inadequate or ineffective in practice.[39] Having regard to the DFAT report, as well as the information above from the USDOS and Suaram, I find that effective protection measures are not available for the harm applicant one faces.
[39] DFAT 2024 Malaysia Report, at [3.125].
I find that it would not be reasonable for applicant one to modify her behaviour, as to do so requires her to conceal an innate or immutable characteristic, being her gender. This an impermissible modification for s 5J(3)(b). I find s 5J(3) does not apply.
On the totality of the information before me, I find that the applicant one has a well-founded fear of persecution.
However, in respect of applicant two, I have reached a different conclusion. While I have accepted, he was neglected and abused by his father when he was a child, I find that on return to Malaysia his circumstances will be different. As noted, he was not beaten by his father in the past, and he will be returning to Malaysia as an adult male who can now defend himself. Applicant two’s clear evidence was that his father will not harm him on return. I accept his evidence on this matter. I accept that their father will try to locate him, along with applicant one, however, I find that he will not harm applicant two. He has not raised any other protection claims. I find that applicant two does not face a real chance of harm on return to Malaysia now or in the reasonably foreseeable future.
Applicant two does not have a well-founded fear of persecution.
Refugee: conclusion
Applicant one meets the requirements of the definition of refugee in s.5H(1). The Tribunal is satisfied that she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Applicant two does not meet the requirements of the definition of refugee in s.5H(1). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection Assessment
Having concluded that the applicant two does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative, complementary protection, criterion in s 36(2)(aa).
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 Court has confirmed that ‘real chance’ and ‘real risk’ involve the same standard.[40]
[40] MIAC v SZQRB (2013) 210 FCR 505.
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. Relevantly, a person will suffer ‘significant harm’ if:
·the person will be arbitrarily deprived of his or her life
·the death penalty will be carried out on the person
·the person will be subjected to torture
·the person will be subjected to cruel or inhuman treatment or punishment, or
·the person will be subjected to degrading treatment or punishment.
The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.
I have found above that applicant two does not face a real chance of any harm on return to Malaysia now or in the reasonably foreseeable future. As real chance and real risk involve the same standard, I similarly find for the reasons discussed above, that applicant two does not have a real risk of harm in Malaysia for s 36(2)(aa) of the Act.
Complementary protection: conclusion
There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that applicant two will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit of a person who meets s 36(2)(a) or (aa).
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include ‘a relative’ of the family head who does not have a spouse or de facto partner, is usually resident in their household, and is dependent on the family head: reg 1.12(4)(d). The definition of ‘relative’ includes ‘close relative’, which in turn includes ‘brother or sister’: per reg 1.03.
‘Dependent’ has the meaning given in reg 1.05A. In relation to protection visas a person is dependent on another person, if they are wholly or substantially reliant on the other person for financial, psychological, or physical support.
In this case, the applicants reside together in the same rental property. I accept that applicant one is the sole income provider, and applicant two is reliant on her for accommodation, basic needs and emotional support. His evidence, which I accept, was that not only is he financially reliant on applicant one, but she is the one who holds the family together and has always taken care of him, including as a child when they were living with their father.
I find that applicant one is the family head for the purpose of this consideration. Applicant two is her brother and is her ‘relative’ within the meaning of the regulations. He does not have a spouse or de facto partner and is usually resident in applicant one’s household. I accept that applicant two is wholly or substantially reliant on applicant one for financial support, as well as psychological and physical support. I find he is dependent upon her within the meaning of reg 1.05A. I find that applicant two is a member of applicant one’s family unit for reg 1.12(4)(d); and that they are members of the same family unit as defined.
Accordingly, I find applicant two is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) of the Act.
Concluding paragraphs
For the reasons given above the Tribunal is satisfied that the applicant one is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that applicant two is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that applicant two is a member of the same family unit as applicant one for the purpose of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the application of applicant two. It follows that applicant two will be entitled to a protection visa, provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Victoria Price
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 2601

27 June 2024

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