1905722 (Refugee) - [2024] AATA 3636

1905722 (Refugee) [2024] AATA 3636 (26 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905722
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Carolyn Wilson
DATE:26 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 July 2024 at 3:30pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – family responsibilities – bank loan – fear of ex-husbands – passport ban of five years – discrimination at work – mental health – economic hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2019 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 25 October 2018. The delegate refused to grant the visa on the basis that borrowing and owing money to a bank and family did not raise a well-founded fear of persecution for any of the reasons in s 5J(1)(a) and defaulting on a loan or being declared bankrupt did not amount to significant harm.
The applicant appeared before the Tribunal on 7 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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…

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.

Continue reading 1905722 (Refugee)

Details

AGLC: 1905722 (Refugee) [2024] AATA 3636
Case: [2024] AATA 3636
Decision Date: 26 July 2024

CaseChat Overview and Summary

This case concerned an application for a Protection visa by a Malaysian citizen who arrived in Australia in August 2018. The applicant claimed to be a single Malay Muslim woman from Selangor who had left Malaysia due to significant financial debts, including loans from family and a bank, and the downturn of her online business. She also alleged threats from two ex-husbands and family responsibilities, including caring for her parents and siblings, and stated she had experienced discrimination at work and suffered mental health issues. The decision under review affirmed the refusal to grant the visa.

The legal issues before the court were whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or under section 36(2)(aa) as a person facing a real risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia. The court was required to consider the applicant's claims of persecution, significant harm, and the availability of protection in Malaysia, taking into account the Refugee Law Guidelines, Complementary Protection Guidelines, and country information.

The court accepted that Malaysia was the applicant's receiving country. However, it found that the applicant did not satisfy the criterion for being a refugee under section 36(2)(a) of the Act, nor did she satisfy the complementary protection criterion under section 36(2)(aa). The court's reasoning, while not explicitly detailed for each claim, implicitly determined that the circumstances described by the applicant did not amount to a well-founded fear of persecution or a real risk of significant harm as defined by the Act. Specifically, the court noted there was no suggestion that the applicant satisfied the criteria as a member of the same family unit as a person who held a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 applicant claims to be a citizen of Malaysia and provided copies of her Malaysian passport and MyKad identity card as evidence of this. Based on this evidence I accept she is a Malaysian citizen and find Malaysia is her receiving country. The applicant arrived in Australia in August 2018 and applied for a Protection visa in October 2018. She claimed to be a single Malay Muslim woman from Selangor who had never been married. She claimed never to have been employed but received financial support from her parents to run an online business. She claimed to have left Malaysia because she borrowed MYR 43,000 from her family and MYR 164,000 from a bank and could not pay it back when a few months later her business went down due to the Malaysian economic situation. Prior to the hearing the applicant provided written submissions dated 17 May 2024. Thes included a setting out her reasons for wanting to stay in Australia, and an 11 page written statement with attached documents setting out her life history. In her covering letter she made the following claims:·If she is returned to Malaysia her father says she must take care of the family and cannot remarry. As the eldest sister in the family she must make sacrifices for the family.·She wants the best care for her mother and her dream is to buy a comfortable house for her parents to live in.·She has to take care of her two brothers in Malaysia. They steal and sell her valuables, and borrow money from her without paying it back. ·She has debts in Malaysia she needs to settle. She has a vehicle in her name with her ex-husband in Malaysia and she does not know if her name is blacklisted or not because sometimes she cannot pay the debt on time.·Both her ex-husbands have threatened her, and say they will hurt her if they see her in Malaysia. The statement setting out her life experiences in Malaysia and Australia included the following:·She has an older brother, younger brother, and two younger sisters. One of her sisters lives with her in Australia. The other works in a [workplace] in Sarawak as a [Occupation 1]. Her older brother is unemployed, lazy, and has drug problems. Her younger brother works only part-time because he is sickly due to [an] accident. Her father is retired and has high blood pressure and diabetes. Her mother has multiple sclerosis and is partially paralysed.·As the oldest girl in the family she was expected to help her parents and the family. Her siblings were favoured in their access to education. In Malay culture preference is given to sons and the most intelligent children. She was only average at school but good at sport and singing, which was not supported or appreciated by her family. Her father belittled her.·She started working at age [age]. She met her husband and married in 2011. She wanted to marry young to escape her toxic home environment. At first she was happy but then realised her husband was lazy and using drugs. He forced her to take out a loan to buy a motorcycle for him. She also used all her savings to start a business with him. ·Her health suffered and she left her husband. He sold all her belongings and came to her parents’ house asking for money. She formally divorced him after 7 years of marriage.·Her mother became sick and was diagnosed with multiple sclerosis. Following surgery her mother became partially paralysed. Around that time the applicant enquired through a friend about working in Australia. She paid an agent a $10,000 fee but after she paid the agent disappeared. She put aside her dream of working in Australia and looked after her mother instead.·In around 2016-2017 she had surgery for fibroids. Her younger sister cared for her and their mother whilst the applicant recovered from surgery. ·She started working as an [Occupation 2], and also did [jobs] on the weekends. In addition to two jobs she had to cook for her family and look after her mother.·A friend suggested she go to Australia and support her family from there. She took out a loan to finance her move to Australia.·Once in Australia a friend helped her apply for a Bridging visa so she could work. She only understood she had applied for a Protection visa when she got the refusal decision. Her friend helped her appeal the decision.·In December 2019 she married a Malaysian man in Australia. Soon into the relationship he was abusive, but she thought things would be better when they married. Two years later she became pregnant, but miscarried due to the pressure on her to support her family in Malaysia and her husband in Australia.·Her employer in Australia offered to sponsor her, but she had problems renewing her Malaysian passport. She spent money on lawyers but they either scammed her or couldn’t help her get the work visa.·In June 2023 she asked her husband to move out, and in August 2023 went to the Women’s Legal Service to get help to divorce him. She is trying to recover from this abusive relationship. She attends counselling and is taking medication to help with depression, anxiety, panic attacks, and sleep problems.·Her family continue to put pressure on her. Her mother wants to know when she is coming home to visit, her brothers borrow money and never pay it back, and her father says she has to help because they are family.

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.Carolyn WilsonMemberATTACHMENT - 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 applicant claims to be a citizen of Malaysia and provided copies of her Malaysian passport and MyKad identity card as evidence of this. Based on this evidence I accept she is a Malaysian citizen and find Malaysia is her receiving country. The applicant arrived in Australia in August 2018 and applied for a Protection visa in October 2018. She claimed to be a single Malay Muslim woman from Selangor who had never been married. She claimed never to have been employed but received financial support from her parents to run an online business. She claimed to have left Malaysia because she borrowed MYR 43,000 from her family and MYR 164,000 from a bank and could not pay it back when a few months later her business went down due to the Malaysian economic situation. Prior to the hearing the applicant provided written submissions dated 17 May 2024. Thes included a setting out her reasons for wanting to stay in Australia, and an 11 page written statement with attached documents setting out her life history. In her covering letter she made the following claims:·If she is returned to Malaysia her father says she must take care of the family and cannot remarry. As the eldest sister in the family she must make sacrifices for the family.·She wants the best care for her mother and her dream is to buy a comfortable house for her parents to live in.·She has to take care of her two brothers in Malaysia. They steal and sell her valuables, and borrow money from her without paying it back. ·She has debts in Malaysia she needs to settle. She has a vehicle in her name with her ex-husband in Malaysia and she does not know if her name is blacklisted or not because sometimes she cannot pay the debt on time.·Both her ex-husbands have threatened her, and say they will hurt her if they see her in Malaysia.