1914231 (Refugee) - [2024] ARTA 724

1914231 (REFUGEE) [2024] ARTA 724 (9 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1914231
Tribunal:General Member M Brereton
Date:9 December 2024

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

Statement made on 09 December 2024 at 2:37pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – victim of violence and stalking – fears harm from ex-boyfriend – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 46, 65, 367, 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 30 May 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 national of Malaysia, applied for the visa on 14 April 2019. The applicant claimed to fear harm because of debts in Malaysia. The delegate refused to grant the visa on the basis that the applicant could obtain effective protection from the Malaysian authorities. The applicant applied for review of the decision on 5 June 2019.
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 appeared before the Tribunal on 20 November 2024, to give evidence and present arguments.
BACKGROUND
Evidence before the Department
In the application for the protection visa the applicant claimed:
I left Malaysia because I got involved with investment which cost all my saving money and I have been cheated. I can't afford to pay all my outstanding debt from bank and money lender even my salary not enough to pay all my debt and I almost became bankrupt. My family and friends also can't help me. So I resign from my job and decide to come here.
The applicant was not invited to an interview or requested to provide further information.
The delegate considered the claims and country information about the police and judicial systems in Malaysia. The delegate found that the applicant would be able to obtain effective protection from the Malaysian authorities and does not face a real chance or real risk of relevant harm should she return.
Evidence before the Tribunal
The applicant applied to the Tribunal on 5 June 2019.
On 18 March 2024, the applicant wrote to the Tribunal and stated that the reason stated in the previous application was false and was done by someone else. She said that the actual reason she is seeking protection is because she has suffered violence and stalking from an ex-boyfriend. She provided a copy and translation of a police report relating to an incident in 2009.
The applicant attended the hearing and gave evidence. Her evidence is considered below.
Post Hearing Information
On 21 November 2024, the Tribunal wrote to the applicant pursuant to s 367A of the Migration Act 1958 (Cth) (the Migration Act). The Tribunal invited the applicant to provide a response or comment on why the claim to fear violence from the ex was not raised before the primary decision was made. The Tribunal invited the applicant to respond by 6 December 2024.
On 4 December 2024, the applicant responded to the invitation. She provided a letter in response to the invitation, and four telephone message screen shots of messages relating to her seeking migration assistance between 2020 and 2024.
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 the applicant’s fear of harm because of violence she has experienced at the hands of an ex-boyfriend. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant claims to be a citizen of Malaysia. She provided her Malaysian passport at the hearing as proof of her identity. She told the Tribunal that she has no right to enter or reside in any other country. The Tribunal finds that the applicant is a Malaysian citizen, and that Malaysia is the receiving country and country of reference for the purposes of his application.
Section 367A
Section 367A refers to the information or claims not being provided before the primary decision was made. Section 5AAA of the Migration Act states that it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
The Tribunal finds that the applicant did not provide particulars or evidence of her claim to fear harm from her ex-boyfriend when she made her application for the visa. The applicant’s explanation is that she did not prepare the application. She told a person what her claims were, and that person prepared the application, but the applicant did not know what was in the application until after she received the delegate’s decision. The Tribunal notes that the period between the making of the application and the decision was 46 days. It also takes into account that the delegate did not ask the applicant to provide further information or invite her to attend an interview before the decision was made.
The Tribunal takes into account that the applicant has a police report corroborating an incident of violence at the hands of an ex-boyfriend (the ex). The Tribunal has also had the advantage of an in person hearing with the witness. The Tribunal found her to be an open and honest witness and did not have any doubts as to her honesty. The Tribunal has no other reason to doubt the credibility of the claim.
The Tribunal accepts that the applicant was not aware of that a false claim had been made in her application until she received the delegate’s decision. She claims that she spoke to people she believed were giving her advice and they said that she was not able to change the reasons as stated in the application. She has provided telephone message screen shots which support her claim to have approached persons and paid money for migration assistance. The Tribunal also notes the applicant’s stated reluctance to proceed with the false claim, despite others telling her to do so (considered further below).
The Tribunal accepts that the applicant did not intentionally make a false claim in her application. The Tribunal is also satisfied that the applicant has not delayed making her real claim unreasonably. Having regard to all the above, the Tribunal accepts that there is a reasonable explanation for why the claim was not raised before the delegate made the decision and does not draw any inference adverse to the credibility of the claim.
Claim
Real Chance of Serious Harm
The applicant told the Tribunal that she met her ex in 2006 in [Town 1] and they were in a relationship until 2009. She said that they did not live together, but they lived very close to each other and were always together. She said that he was initially kind and loving but he began to get controlling and jealous. Sometimes he would hit her when they fought. This is what led to the assault in 2009. The applicant has provided a copy and translation of a police report that details a violent assault that included hits, slaps, and choking. She said that the ex knew she had made the police report and asked her to withdraw it, because it might affect his future career. She did not withdraw the report and broke up with the ex.
The applicant said that although she made the report, noting happened. She said that the applicant’s father is a police officer and when the applicant was making the report, a female police officer laughed at her about it. She said that she waited for the police to act but nothing happened. Her ex called her to apologise but she wanted to break up and they did.
The applicant said that after about a year, the ex called her again and was very apologetic and distressed. The applicant accepted his apologies and began seeing him again but after a couple of years the violence increased and became unbearable. She said that around this time she noticed that he had a copy of her identity card. Eventually the applicant could take no more and left to live in another town. This was in about 2014.
The applicant told the Tribunal that for the next few years she regularly saw the ex. He did not speak to her or interact, but he would turn up at places she went to, watch her, and make it clear that he was following her. She said she began receiving strange and sexual telephone calls from strangers and found out that her number had been put up on toilet walls. She moved to another town but saw one of the ex’s friends there, watching her. She went back to [Town 1] for work and the ex began stalking her again. She began thinking about escaping Malaysia and in 2016 she began researching which countries had the best humanitarian reputation. She tried to get a visa for Canada, but she was the victim of a scam and lost her money. In 2018 she went to Europe for two weeks on a holiday and when she returned, the ex was still stalking her. She was scared that he might do more and so she came to Australia in 2019.
The Tribunal asked why the applicant waited for nearly four months before making a protection application. She said that she was talking to people and asking around to find someone she could trust to help with the application. She said that she had a friend (who she no longer has contact with) who arranged someone to help. The friend acted as a “middleman” and the applicant never actually met the person who did the application for her. She said that she told the friend what her claims were (fear of harm from the ex) and thought that is what would be put in the application. She did not know what was said in the application.
The Tribunal confirmed with her that she had received the delegate’s decision. The Tribunal asked why she did not go straight to the Department and tell them that these were not her claims. She said that people told her that once you have made the application, you cannot change the details. The Tribunal asked why she had changed the details in 2024 and she said that she had spoken to someone else who told her that she should tell the Tribunal the real reasons. She said some migration agents had told her to just press ahead with the debt claims, but she did not want to lie.
The Tribunal asked why she had been researching humanitarian records in 2016 and she said that she wanted to escape from Malaysia. She repeated that she had tried to go to Canada but had been scammed. The Tribunal put to her that in 2018 she went to Europe for two weeks. She said that she had gone to [countries]. The Tribunal asked why she had not applied for protection in Europe, and she said that Europe was not good. She said that when she was on a bus in [a country], someone had spit on her. The Tribunal put to her that it was difficult to understand why, if she feared harm in Malaysia, she would go to Europe and then return to Malaysia. The applicant said that she had the fear and wanted to escape it.
The Tribunal asked her what she fears will happen if she returns to Malaysia. She said that her ex will resume stalking her. The Tribunal asked if he had attempted to contact her in Australia. She said that had changed her mobile number and there was no way he could contact her here, but if she returns, he will be able to find her because he has her identity card. He will be able to use that to locate her. The Tribunal asked why he would do so now, given the applicant has been away for five years. She said that he is a psychopath and will keep stalking her.
The Tribunal accepts the applicant’s claimed history and finds that she suffered some violence, intimidation, and stalking, by her ex in Malaysia. The Tribunal accepts that the applicant has a subjective fear that such things will resume if she returns to Malaysia. However, as put to the applicant, it has been five years since the applicant left Malaysia. She has had no contact with the ex in that time and he has not spoken with, or otherwise tried to contact, her family in Malaysia. The Tribunal accepts that in the immediate aftermath of the breakup, the ex engaged in behaviour that would be considered stalking in Australia, but the Tribunal is not satisfied on the evidence before it that the ex’s adverse interest remained after the applicant left Malaysia. The Tribunal is not satisfied on the evidence before it that the adverse interest will resume if the applicant returns to Malaysia, even if the ex becomes aware she has returned. The Tribunal does not discount that the applicant is worried about what may happen, but the Tribunal needs to consider whether there is a real chance that the applicant will face harm. Having regard to the time that has passed and the lack of any attempt to contact the applicant or her family since she left, the Tribunal finds that there is only a remote, and therefore not a real, chance that the ex will have any adverse interest in the applicant if she returns to Malaysia. The Tribunal finds that there is not a real chance that she will face any harm from the ex, now or in the reasonably foreseeable future, should she return to Malaysia.
The applicant told the Tribunal that the claim to be in debt is not her claim. She does not claim to be in debt or to fear any harm arising from debts in Malaysia. She does not claim to fear harm for any other reason or reasons in Malaysia. The Tribunal finds that there is not a real chance that she will face any harm for any other reason or reasons, now or in the reasonably foreseeable future, should she return to Malaysia.
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).
Complementary Protection
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 that the applicant will face any harm from her ex, or for any other reason or reasons, now or in the reasonably foreseeable future, should she return to Malaysia. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[1] the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[2] Having regard to this, and to the findings and reasons set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
[1] (2013) 210 FCR 505
[2] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
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 under review.
Date(s) of hearing:               20 November 2024.
Representative:  Not represented.
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.
…