Evidence
Evidence Before The Court
The applicant was not invited to an interview with the delegate, and no further written evidence was provided to the Department in support of her claims for protection. On 4 January 2019, the delegate refused to grant her a protection visa. The delegate was not satisfied the applicant had established her claims. They noted her previous travel to Australia and that she had not raised claims she was in need of protection. On the basis of country information, the delegate also found that any discrimination or harassment the applicant may suffer in Malaysia did not reach the threshold of persecution and therefore that the applicant was not a refugee. In relation to complementary protection, the delegate found the applicant could obtain protection from the authorities such that there would not be a real risk of significant harm in Malaysia.Evidence before the Tribunal As stated above, the applicant applied for review on 21 January 2019 and provided a copy of the delegate’s decision record with her review application. On 26 March 2024 the AAT wrote to the applicant to advise her that her case was being prepared to be constituted to a member and requested that she complete a ‘pre-hearing information’ form. The applicant responded on 2 April 2024 with a completed form, in which she provided the following information:Yes, I would like to explain more details in person on my current situation regarding my previous claims. Unfortunately, my partner that I came with has left me for good and that has caused a few changes that I did not expect for the last few years. The depression and anxiety that I have faced has make me more stress and I'm afraid that I couldn't hold myself straight if i need to return back to Malaysia, I had several times tried to harmed myself when we had a breakup back home and I do not wish to see or even go back to that situation again. I'm keen to meet one of the members to give proofs and to discuss further more on my current status which hopefully will allow me to reside in Australia peacefully without any longer wait. In fact, I wish nothing but to be a good Australian resident and serve the country till my last breath. On 7 May 2024 the applicant provided a completed ‘Response to hearing invitation form’ and requested the Tribunal take evidence from two witnesses at her hearing scheduled for 4 June 2024. The first witness was [Ms A], described as the applicant’s ex-partner, who would give evidence of their former relationship and that they travelled to Australia together. The second witness was [Ms D], who was described as a ‘work/friend’. No information was provided about the evidence [Ms D] proposed to give. In response, the Tribunal requested the applicant provide a written statement from each witness setting out the evidence they would give at the hearing, in accordance with the Tribunal’s Practice Direction (at that time), together with evidence of their identity. On 29 May 2024 the applicant submitted a statement from [Ms A] together with a copy of the biodata page of her passport. In her statement, [Ms A] stated that she and the applicant had been in a relationship since 2011. She stated that they had met at college, had graduated from their course together, and had lived together in Kuala Lumpur. In 2018 they had decided to come to Australia to attend the Mardi Gras. They did not travel in time to attend but had decided that they would marry and migrate to Australia permanently where their relationship would be welcomed. In 2019, [Ms A] commenced a relationship with one of their roommates, a man named [Mr E], and the relationship between her and the applicant ended. About a month after this, [Ms A]’s family found out about her previous relationship with the applicant and were very angry. Not long after [Ms A] returned to Malaysia at the request of her family.
Decision
Reasons for decision
It follows that the applicant does not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision under review.Date(s) of hearing: 4 June 2024ATTACHMENT - 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 (‘he Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant was born in [Month Year] in Pahang, Malaysia but grew up in Seri Kembangan in Selangor. She is an ethnic Malay and a Muslim. Her father passed away when she was [age] years old. Her mother is remarried and recently moved to Terengganu state in Malaysia. The applicant has [siblings], all of whom reside in Seri Kembangan in Selangor, Malaysia. The applicant was married to [Mr B] [in] August 2020 in NSW, Australia. They have one child of the relationship, [Master C] born on [Date]. She first travelled to Australia from [October] to [November] 2016. She visited Australia again between [Day] October and [Day] October 2017. She last arrived in Australia [in] March 2018 on an Electronic Travel Authority (Subclass 601). The applicant applied for a Protection (Subclass 866) visa on 4 June 2018. The applicant’s husband, [Mr B] applied for a Protection (Subclass 866) visa on 21 May 2018. The applicant’s son, [Master C] was born on [Date], after the delegate refused the applicant’s visa, but prior to when the delegate refused his father’s protection visa application. Accordingly, by operation of reg 2.08 of the Migration Regulations 1994, [Master C] was taken to have applied for a protection visa at the time he was born. Evidence before the Department of Home Affairs Together with her protection visa application form, the applicant also provided a copy of her Malaysian passport, and a copy of the Electronic Travel Authority for Australia granted to her on 2 October 2017. In her visa application she made the following claims to be owed protection:a.She left Malaysia because of her personal interest. Her family and society cannot accept who she is. She is a homosexual and her Muslim country doesn’t allow all kinds of LGBT activity. This is an obstacle in her relationships in future. b.If she returns to Malaysia she will be threatened, humiliated, depressed, and will break up with her partner. c.She did not experience harm in the past in Malaysia. She did not seek help in Malaysia because there is not justice for people like her. She did not try to move to another part of Malaysia for safety. d.She believes she will be harmed or mistreated in Malaysia because the society and the law will not change. The authorities can’t protect her in Malaysia because there is no justice for people like her. She cannot relocate to an area where she would be safe because the rules are the same in other places.