1905578 (Refugee)

[2024] AATA 3659

1905578 (Refugee) [2024] AATA 3659 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905578

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Genevieve Hamilton

DATE:23 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 23 July 2024 at 3:44pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – women – victims of family violence – image based sexual offenses – physical assault – applying for work rights – criminal gang – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 November 2018. The delegate refused to grant the visa on 27 February 2019.

3. The applicant appeared before the Tribunal on 22 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her friend.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

8. 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.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. 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.

    CLAIMS AND EVIDENCE

16. According to her protection visa application the applicant was born in Kedah Malaysia in [specified year] and travels on Malaysian passport.  She declared no family and indicated she had no contact with family overseas.  Her address was in Petaling Jaya, Selangor.  She is a Malaysian citizen.  Her ethnicity is Malay and her religion is Islam.  She arrived in Australia [in] August 2018.  She stated she was not currently employed and declared no employment history, and that she had never studied. 

17. The applicant said her parents had had serious issues with their business; people searched for, harmed and threatened her parents and herself.  Her parents’ customers harmed and threatened her, and followed her every day.  She did not know from whom she should seek help within Malaysia.  She was not sure if the authorities could protect her.  She planned to stay in Australia and work legally.  She did not relocate because she was safer with her family.  She declared that she had not had assistance with the application, including from an interpreter. 

18. In a statement to the Tribunal provided in March 2024, the applicant said that she did not know the reason written on her protection application because she paid money to someone else to write it.  She said she came to Australia to get away from her ex-fiancé.  Her family forced her to become engaged to him in 2016.  They did not know that he was beating her up, mocking and molesting her.  He has kept naked pictures and videos to threaten her.  She was afraid to report to the authorities.  She was disappointed in her family for not believing how he behaved.  She was paranoid that men had her pictures.  She had worked at a beauty counter.  Her customers were only women but she had to prove to him by photos and video calls that she was not with any men during the day.  He would also call her work place asking where she was.  After a year and a half her employment was terminated because of this.  Her ex is also a member of an illegal street racing club.  They are not afraid of the authorities and they do anything he asks.  He and his friends followed her to [Town 2] when she tried to relocate, and her beat her until she couldn’t stand.  Even her parents may harm her because their pride has been damaged in relation to his family. 

19. In Australia she went to [Town 1] to work within days of arriving.  She later tried to get work at a [business] in Melbourne but they wouldn’t accept someone without work rights so she went back to [Town 1].  After three months the contractor said she needed a visa to keep working.  She didn’t really know what a protection visa was, she was told it was a visa with a working permit.  Many of the workers did not know what a protection visa was. 

20. The applicant submitted photos of bruises on her arms and leg taken in Malaysia in 2017.

21. At the hearing the applicant said her parents were divorced; her father is a labourer and [occupation 1] and lives in Petaling Jaya.  Her mother is in Kedah on land belonging to her family; she remarried but her second husband passed away.  The applicant has one brother working in Klang. 

22. The applicant’s friend said the applicant was afraid; she was traumatised even if people look at her.  She was afraid of her ex-fiancé who threatened her. 

23. The applicant said she had someone complete the protection application for her because she needed to work.  She did not know that it needed to include all her claims.  She was told that it did not need to state a reason.  She thought she was only applying for work rights.  She did not know even know that she was applying for protection. 

24. She did study in Malaysia, finishing her education in [specified year] and then worked in a [business] for about a year and a half.  She stopped working there about two months before she came to Australia.  She was renting a room with a friend in Selangor while she worked at this job. 

25. The applicant did not know what claims were made in her application and said she had not read the decision made by the Delegate.  The Tribunal observed that if the applicant feared harm in Malaysia it would have thought she would take an interest in the Delegate’s decision.  The applicant said she did not even know it was a protection application but thought it was an application for work rights.  The Tribunal referred to the claims made in the protection application regarding a business problem of her parents and being harmed by their customers.  The applicant said these claims were not true.

26. The applicant reiterated her claim that her ex-fiancé was a bad character who nevertheless had captured the heart of her parents.  The two families knew each other from the days before her parents divorced.  He was lavish with gifts and help to her parents and could be very charming.  They forced her to become engaged to him.  (The applicant repeatedly said that they forced her to marry him but when corrected agreed that she was not married). 

27. Asked how her parents forced her to become engaged, the applicant said it was possible they were in debt to someone.  She came to Australia in order to avoid the marriage.  The Tribunal put to the applicant that she was free not to marry.  The applicant said she was immature and introverted at that time.  The Tribunal observed that the applicant could nevertheless say no to the marriage.  The applicant said that as a female and a Muslim she was not free to do that.  The Tribunal put to the applicant that she had some ability to live independently and make decisions for herself, given that she had worked and rented accommodation in Selangor.  The applicant said her ex-fiancé’s gang friends could find her anywhere.  They had found her in [Town 2]. 

28. The Tribunal asked the applicant what she told her parents.  She said if she had told them he hit her and threatened her and took her money they would have denied it.  Then she said she did tell them he hit her, but they did not believe her.  Asked why not, she said they thought she was just trying to get out of the engagement.  Asked why it was so important to them that she marry this particular person she said they had a debt.  She did not know how much but it could have been over 100,000 ringgit.  So they may have been grateful for the settlement of this debt.  The Tribunal put to the applicant that she appeared to be speculating about this and any financial relationship between her parents and her ex-fiancé.  The Tribunal put to the applicant that if it did not accept this aspect of her claims, it may affect the credibility of her claims in general. 

29. The applicant maintained that she was hit and verbally abused by her ex-fiancé and that he abused her modesty by taking nude pictures of her.  Asked if she heard anything further from him since coming to Australia, the applicant said she had tried to forget him.  Asked if she had heard any news of him, for example had he contacted her family, the applicant said she was not in contact with her family at all and even her mother does not know that she is in Australia.  If she tells her mother, she will tell him.  Asked what would happen if he knew that she was in Australia, the applicant said he could harm her.  The Tribunal asked how he could harm her in Australia.  The applicant was unable to answer the question but insisted she was not in contact with her parents.  The Tribunal put to the applicant that if she had gone missing her parents would have made enquiries about her movements.  The applicant said they are old villagers. 

30. Asked why her ex-fiancé would be a problem for her if she returned to Malaysia now, almost six years since she left, the applicant said he might be vengeful.  He will easily hear about it if she returns.  Asked how he would know she had returned, the applicant reiterated that he could find her anywhere.  The Tribunal put to the applicant that he would not know that she had returned to Malaysia.  She said he would know as soon as she landed.  The Tribunal expressed reservations about this.  The applicant said he gang members go everywhere and they get information from each other.  She could be killed. 

31. The applicant said she never reported her ex-fiancé to the police because she was fearful.  There was a discussion of the photographs in which the Tribunal observed that the bruises may not have been due to an act of violence. 

    FINDINGS AND REASONS

32. Based on the information in her application, the Tribunal finds that the applicant’s country of nationality is Malaysia.

33. The applicant’s initial claims concerning customers of her parents’ business were abandoned and the Tribunal does not accept them. 

34. For the purpose of this decision the Tribunal accepts that women are a particular social group in Malaysia.  The Tribunal finds that women in Malaysia are not in general at risk of persecution.  They participate widely in Malaysian public life. There is a pattern of gender-based violence in Malaysia but not all women are at risk: it depends on their domestic and other relevant circumstances. 

35. In the applicant’s case, she claimed to have been harmed and to still fear harm by her ex-fiancé.  She also feared being harmed by her parents because they prefer her ex-fiancé. 

36. Section 423A of the Act requires the Tribunal to draw an unfavourable inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence presented before the primary decision. 

37. In this case the Tribunal is satisfied that the applicant does not have a reasonable explanation for not raising the gender-based violence claims and submitting the related evidence at the primary stage.  Her explanation, that she did not know what claims were made and did not know that she was making a protection application, was unconvincing.  Even if her main aim was to get work rights, as appears from her evidence, it is reasonable to expect that a visa applicant pay some attention to the substance of information being submitted to the Department on their behalf. 

38. The Tribunal therefore draws an adverse inference as to the credibility of the gender-based violence claims.  Further, it does not accept that they are true.  If the applicant had such experiences and fears that she claims drove her from Malaysia and out of contact with her family, at least when she received the Delegate’s decision and asked for it to be reviewed, her real claims should have been revealed to the Tribunal if they were true.  Instead they were submitted years later. 

39. Moreover, the applicant exaggerated aspects of her evidence which further undermined the credibility of her claims.  Her claimed failure to even inform her parents about having gone to Australia was implausibly cruel, and was not satisfactorily explained, and is not accepted.  There could be no harm in them at least knowing she was in Australia.  Also, the applicant tried to portray her engagement as forced but she did not fully explain the compulsion either on herself or on her parents in relation to marrying that particular choice of husband.  She had exercised some autonomy in her life including by coming to Australia.  When pressed on this the applicant reached for a speculative claim about either the fiancé or his family helping her family with money.  This was unsubstantiated and further undermined her credibility. 

40. It follows that the Tribunal does not accept any element of the applicant’s claims.  It does not accept that she had a fiancé and therefore does not accept that he abused her in any of the ways she claimed, i.e. physically, verbally, sexually or financially or by being controlling.  It also does not accept that she went to [Town 2] and was found and beaten up there, or that she lost her job because of the fiancé’s behaviour. 

41. The Tribunal therefore does not accept that the applicant will be harmed by that person in the future.  It does not accept that her parents would harm her out of their loyalty to that person. 

42. The Tribunal gives no weight to the witness evidence.  They are also a protection applicant and therefore do not have a disinterested perspective on Tribunal proceedings.  The Tribunal gives no weight to the photos as there is no corroboration that the bruises they depict were caused by an act or acts of violence. 

43. In summary, the Tribunal does not accept that the applicant faces a real chance of serious harm due to being a woman as defined in ss 5J(4) and (5) for any of the reasons specified in s 5J(1), or for any reason.  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

44. Regarding complementary protection, the Tribunal has not accepted the factual basis of the applicant’s claims, and for the same reasons the Tribunal does not accept that there are substantial grounds to believe that there is a real risk that she will suffer significant harm as defined in s 36(2A), i.e. arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. 

    CONCLUSION

45. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

46. 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.

1. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

2. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Genevieve Hamilton
   Member