1908737 (Refugee)
[2024] ARTA 709
•3 December 2024
1908737 (REFUGEE) [2024] ARTA 709 (3 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1908737
Tribunal:General Member V. Price
Date:3 December 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 03 December 2024 at 12:37pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – claimed to have incurred a lot of debt – no evidence provided – not satisfied the applicant is a person in respect of whom Australia has protection obligations – applicant does not have a well-founded fear of persecution – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Administrative Review Tribunal Act 2024, s 106
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be national of Malaysia, applied for the visa on 12 October 2018. The delegate refused to grant the visa on the basis that she did not satisfy the requirements of s 36(2) of the Act.
On 20 May 2024 the Tribunal wrote to the applicant advising that her file was being prepared to be constituted to a Member and requested that she complete and return a prehearing information form within seven days. The applicant did not complete or return the prehearing information form.
By letter dated 30 August 2024 the Tribunal wrote to the applicant and invited her to give evidence and present arguments at a hearing scheduled for 10.30pm on 7 November 2024. In the hearing invitation it was stated that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.
The applicant responded to the Tribunal’s hearing invitation by email on 4 November 2024, in which she attached a completed hearing response form. In that form, which was signed by the applicant on 4 November 2024, she selected the ‘No’ box asking whether she will take part in the hearing scheduled. That states, in full: ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking any further steps to allow me to appear’.
On 4 November 2024, the Tribunal wrote to the applicant confirming receipt of the completed hearing response form in which she indicated she would not participate in the hearing and consented to a decision on the papers. The Tribunal advised the applicant it would proceed to determine the issues in this case in the absence of a hearing on the information and evidence currently available.
The circumstances in which the Tribunal may reach a decision without a hearing are set out in section 106 of the Administrative Review Tribunal Act 2024 (ART Act). They include where an applicant requests the Tribunal to make its decision without holding a hearing of the proceedings: s 106(3) ART Act. In this case, the Tribunal is satisfied based on her response to the hearing invitation that she requests the Tribunal to make its decision without holding a hearing. There is no ambiguity in her response and the Tribunal is satisfied the written response to the hearing invitation form can be properly construed as a request to make a decision without holding a hearing of a proceeding as per s 106(3)(b)(ii) of the ART Act.
The Tribunal must also consider whether it appears that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding: s 106(3)(b)(c).
In reviewing a decision to refuse to grant a protection visa, the issues which the Tribunal are required to determine are:
·whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act if returned to their receiving country and if not;
·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
The Tribunal has a copy of the Department’s file which includes the applicant’s identity documentation and the protection visa application containing the applicant’s biographical information and her claims for protection. The applicant also provided the Tribunal a copy of the delegate’s decision record which sets out some of this information. Based on this information the Tribunal is able to determine the applicant’s identity and receiving country. It is also able to consider whether she meets the criteria for a protection visa in ss 36(2) of the Act without seeking further evidence or submissions from the applicant. In these circumstances it appears to the Tribunal that the issues in this case can be adequately determined in the absence of a hearing.
BACKGROUND
The applicant in this case is an adult female from Malaysia. She states she was born in Kuala Lumpur. The applicant departed Malaysia in March 2018.
Evidence before the Department
In the protection visa application form the applicant claimed:
·In Malaysia she got into a lot of debt and the people to whom she owned money pushed her to pay it back. She needed more time to do so, but they did not understand.
·She became so stressed and depressed by the situation, she contemplated suicide. An agent told her she can come to Australia for a better life and paid them money to arrange for a visa and accommodation in Australia. When she arrived, the agent blocked her number, and she could not contact them.
·In Malaysia she will have to work more than 2 jobs to repay the debt. She cannot get assistance from the authorities or anyone else because it is a personal problem.
·She cannot relocate elsewhere in the country. If she returns, she faces the same problems.
The applicant was not interviewed by the delegate. However, the delegate was not satisfied the applicant was owed protection as a refugee or under the complementary protection provisions.
On review the applicant did not provide any submissions to the Tribunal and consented to a decision being made without a hearing, as noted.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 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.
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.
REASONS AND FINDINGS
The issue in this case is whether the applicant satisfies the criteria for the grant of a protection visa in accordance with s 36(2) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality.
The applicant provided a copy of her Malaysian passport to the Department. On the basis of this evidence, I find that she is a national of Malaysia.
Refugee Assessment
As indicated above the applicant claimed to have incurred a lot of debt and that the people to whom she owned the money pushed her to pay it back. She became so stressed and depressed by the situation, she contemplated suicide. She will have to work two jobs in Malaysia to repay the debt.
However, the applicant’s claims and evidence do not indicate: how she incurred the debt; who she borrowed money from; how she found the lender/s; the nature of the loan/s including the amounts and rates of interest; whether she made any repayments prior to coming to Australia; or how much was outstanding. Nor did her statement provide details regarding how the lender/s ‘pushed’ her to repay the debt, including whether she was threatened, and if so, how she was threatened, the regularity of any threats, and whether she or her property were harmed in any way.
On the evidence before me, I am not satisfied that the applicant took out any loans in Malaysia or that she was pushed to make the repayments as she claimed. Nor do I accept that the applicant became stressed, depressed, or contemplated suicide due to the situation, or that she will have to work multiple jobs in the future to repay that debt. I am not satisfied, and do not accept, that the applicant faces a real chance of any harm on return to Malaysia now or in the reasonably foreseeable future for any reason associated with any outstanding debts.
The applicant stated that her agent had blocked her number and she was not able to contact them. She did not claim that she faced a real chance of any harm for this reason now or in the reasonably foreseeable future, and I am not satisfied and do not accept, that she does.
She does not have a well-founded fear of persecution.
Complementary protection assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has found above that there is not a real chance the applicant will experience harm on return to Malaysia due to any outstanding debt or due to the fact her agent has blocked her. As ‘real chance’ and ‘real risk’ involve the same standard[1], I similarly find, for the reasons set out above, that these matters do not give rise to a real risk of harm for the purpose of s.36(2)(aa).
[1] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s 36(2A) of the Act, if he is removed from Australia and returned to Malaysia.
CONCLUDING PARAGRAPHS
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
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.
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