1906532 (Refugee) - [2024] ARTA 522

1906532 (REFUGEE) [2024] ARTA 522 (31 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Ms Isobel McGarity
Respondent:Minister for Home Affairs

Tribunal Number: 1906532
Tribunal:General Member B Butler
Date:31 October 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 31 October 2024 at 5:43pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Chinese-Malaysian ethnicity – loan sharks – suicidal thoughts – mental health – came to Australia to earn money and pay off her debts – medical conditions – racial discrimination in Malaysia against Chinese Malaysians – applicant does not have a well-founded fear of persecution – was in a relationship with an Australian citizen – a suspected victim of human trafficking – poor treatment in Australia – cooperation with the AFP in a criminal matter – referral to the Minister – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 351, 499
Migration Regulations 1994, Schedule 2
CASES
SZTGM v MIBP (2017) 262 CLR 362
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant is a [age]-year-old woman who is a national of Malaysia of Chinese-Malaysian ethnicity. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia on [date] March 2017 as the holder of an electronic travel authority. The applicant applied for the visa on 6 August 2018. The delegate refused to grant the visa on 5 March 2019 on the basis that they were not satisfied that the applicant engaged Australia’s protection obligations.
The applicant appeared before the Tribunal on 28 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The applicant was represented in relation to the review. Her representative is from Anti-Slavery Australia which is a not-for-profit legal practice that provides specialist legal advice, assistance and representation to victim-survivors of all forms of modern slavery, including deceptive recruitment, forced labour and servitude.
The applicant’s representative provided submissions and support material to the Tribunal prior to the Tribunal hearing. She did not attend the Tribunal hearing.
BACKGROUND
Evidence before the Department
In her protection visa application, the applicant set out her claims for protection which are summarised as follows:
·The applicant’s husband was sick and required medical treatment. She came to Australia to earn money to support her husband’s treatment so that he could go to a good hospital in Malaysia. An agent facilitated her travel to Australia.
·Her agent found her a job in a [shop]. The boss at the shop, a woman from [Country 1], refused to give her salary to her and said that…

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 1906532 (Refugee)

Details

AGLC: 1906532 (Refugee) [2024] ARTA 522
Case: [2024] ARTA 522
Decision Date: 31 October 2024

CaseChat Overview and Summary

The case involves an applicant from Malaysia seeking a protection visa in Australia. The primary issue for the court was whether the applicant qualified for a protection visa under the relevant provisions of the Migration Act. The applicant claimed that she faced racial discrimination in Malaysia and was subjected to poor treatment in Australia, where she also provided assistance to the Australian Federal Police in a criminal matter. The court needed to determine if the applicant had a well-founded fear of persecution based on her claims.

The court reviewed the evidence and submissions provided by the applicant and her representative. It found that while the applicant's claims of poor treatment in Australia were substantiated, they did not meet the threshold for a refugee status. The court considered the applicant's history in Malaysia, her relationship with an Australian citizen, and her cooperation with the police. Ultimately, the court concluded that the applicant did not have a well-founded fear of persecution if returned to Malaysia, and therefore did not qualify for a protection visa.

Based on the court's findings, the decision to refuse the protection visa was affirmed. The matter was also referred to the Minister for consideration under s 351 of the Migration Act, given the applicant's relationship with an Australian citizen and her cooperation with the police. The final orders of the court affirmed the decision of the delegate and referred the matter to the Minister for potential discretionary intervention.

Orders

Orders of the court

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Background

Background to the litigation

The applicant’s representative provided submissions and support material to the Tribunal prior to the Tribunal hearing. She did not attend the Tribunal hearing.BACKGROUNDEvidence before the Department In her protection visa application, the applicant set out her claims for protection which are summarised as follows:·The applicant’s husband was sick and required medical treatment. She came to Australia to earn money to support her husband’s treatment so that he could go to a good hospital in Malaysia. An agent facilitated her travel to Australia.·Her agent found her a job in a [shop]. The boss at the shop, a woman from [Country 1], refused to give her salary to her and said that the applicant couldn’t open a bank account. She fought with her boss over her salary and the boss said she would give the salary to her family in [Country 1]. Her boss reported her to the police for touching her, but her boss had punched her.·She had a daughter studying in Australia at the time, but her daughter did not want to see her. Her daughter had a boyfriend from [Country 1] who was wealthy, and she was afraid that her boyfriend might find out she doesn’t come from a good family. ·She cannot return to Malaysia because her family in Malaysia hate her. The delegate found that the applicant’s claim of harm was not for a refugee reason in s 5J(1)(a). The delegate also had regard to the state of the Malaysian economy and found that the applicant would not face significant harm on the basis of economic hardship.Evidence before the Tribunal Prior to the hearing, the applicant’s representative submitted a bundle of material about the applicant’s current situation and her life in Australia. The applicant provided a statutory declaration dated 23 October 2024 outlining her history in Malaysia and situation in Australia. It provides details about her experience of modern slavery in Australia and the assistance she provided to the Australian Federal Police (AFP) who were investigating the situation, her marriage to an Australian citizen, the death of her Australian [husband], her mental health, her health generally, and suicide attempts.Applicant’s statutory declaration In relation to her background in Malaysia, the applicant said she grew up in a poor village in Selangor and that her childhood was very difficult. She is one of [several] children. Her father also had two children with his mistress, such that there were [number] children in the family. Her father used to hit her and she was mistreated by both her parents as they favoured boys over girls. She completed up to [a grade] in primary school. When she was around [age] or [age] years old, her parents tried to force her to marry her brother’s boss because he would pay 10,000 ringgit to her family. She ran away from home as she did not want to be sold to the man. She started a relationship with a man who treated her poorly, and hit her when she was pregnant. The man left her when she was pregnant and she had to raise her son alone. Her son was born in [year]. She started a relationship with another man, and she had a daughter with him. They married 12 years after they first met.

Evidence

Evidence Before The Court

The delegate found that the applicant’s claim of harm was not for a refugee reason in s 5J(1)(a). The delegate also had regard to the state of the Malaysian economy and found that the applicant would not face significant harm on the basis of economic hardship.Evidence before the Tribunal Prior to the hearing, the applicant’s representative submitted a bundle of material about the applicant’s current situation and her life in Australia. The applicant provided a statutory declaration dated 23 October 2024 outlining her history in Malaysia and situation in Australia. It provides details about her experience of modern slavery in Australia and the assistance she provided to the Australian Federal Police (AFP) who were investigating the situation, her marriage to an Australian citizen, the death of her Australian [husband], her mental health, her health generally, and suicide attempts.Applicant’s statutory declaration In relation to her background in Malaysia, the applicant said she grew up in a poor village in Selangor and that her childhood was very difficult. She is one of [several] children. Her father also had two children with his mistress, such that there were [number] children in the family. Her father used to hit her and she was mistreated by both her parents as they favoured boys over girls. She completed up to [a grade] in primary school. When she was around [age] or [age] years old, her parents tried to force her to marry her brother’s boss because he would pay 10,000 ringgit to her family. She ran away from home as she did not want to be sold to the man. She started a relationship with a man who treated her poorly, and hit her when she was pregnant. The man left her when she was pregnant and she had to raise her son alone. Her son was born in [year]. She started a relationship with another man, and she had a daughter with him. They married 12 years after they first met. Her husband was diagnosed with [medical conditions] at the age of [age] and was on [a treatment] for 12 years. They borrowed money from loan sharks to pay for his treatment. They said they would beat her if they didn’t pay back the money. She asked her husband if they could suicide together because everything was too tiring. Her husband told her to go to Australia for a few months to have a break from her suicidal thoughts and she came to Australia in March 2017. A friend in Malaysia had told her that she could get paid $3000 a month in Australia, and she thought that if she was able to earn this amount in Australia, she could pay for her husband to obtain better treatment in Malaysia. Once in Australia, she tried to find her daughter who was studying but her daughter did not want to see her because she did not have money, and she was scared that her boyfriend from [Country 1] may find out she isn’t from a good family with money. She does not have a relationship with her daughter, which is painful for her. In August 2017, her first husband took his own life. She started a job at a [shop] in [City 1] in October 2017, after seeing an advertisement for a [female] to work in the shop. In relation to working at the shop, the applicant said:“I was trapped and exploited by my boss, a woman from [Country 1]. I was not paid at all. She said to me, “you’re new here and it’s easy to be scammed, I will tell you each week how much money you make and I will keep it for you”. She said because I did not have a visa and could not open a bank account, she had to keep all my money. When I wanted to go back to Malaysia to see my husband, I asked my boss to give me my money and she refused. She lied to me and I cried.When I asked for my money for Chinese New Year, she hit me on the head and kicked me all over my body. From the second week I started in the job, she pressured me to do [deleted]. [Details deleted]. I really had no choice but to continue to do it. My boss would also punch me and hit my body. She said she would have me arrested or sent to [Country 1] if I tried to leave. I could not leave the situation as I did not have a roof over my head, and had not received my pay.”

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.MINISTERIAL INTERVENTION I have considered the ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’. The guidelines set out the cases which have unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of the intervention powers. Examples of unique or exceptional circumstances in the guidelines include compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person. The applicant was in a relationship with an Australian citizen for over two years. She met [Mr A] when he was a customer at the [shop]. He assisted her obtain her unpaid wages from the [shop]. After she left the shop, she said she lived with [Mr A] for about six weeks in January 2018. She said that he was a gentleman during this time, and they were not in an intimate relationship during this period, and were friends. She then got a job at another [shop] in [City 2] and said that it was a ‘proper’ [shop] where was paid properly and not required to perform any extra services. She said she is a good [worker] and is trained. She and [Mr A] entered into a relationship after she had moved to [City 2], and she said she would visit him on weekends, and they would go fishing and camping. They married in January 2019, and she said they had a good relationship. She continued to work in [City 2]. During this period, she may have been able to apply for a partner visa. She said she was devastated when he [died]. It appears that if she had received appropriate immigration advice, she may have been able to apply for a partner visa prior to his death. The applicant was subjected to extremely poor treatment when she worked at a [shop]. She said that during those months that she was working for her boss, she was not given access to the key to house and could not go to the toilet without speaking to her boss. As she didn’t have a key, she had to follow her around to access the house. She said that at the time, she didn’t know anybody in [City 1], and so when she hit her, she couldn’t resist. Her salary was also unpaid, which meant that she was effectively a slave. The applicant was identified in 2021 as a suspected victim of human trafficking in relation to her treatment at the [shop] by the AFP. She said that she actively participated in the investigation and attended many interviews at the AFP headquarters in Melbourne.

Ratio Decidendi

Legal Principle Established

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