1914883 (Refugee) - [2024] ARTA 618

1914883 (REFUGEE) [2024] ARTA 618 (6 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1914883

Tribunal:General Member Genevieve Hamilton
Date:6 November 2024

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

Statement made on 06 November 2024 at 2:27pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – women – employment – economic conditions – mental health issues – sexual assault – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 March 2019. The delegate refused to grant the visa on 30 May 2019.
The applicant attended a hearing of the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).
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.
One or more of the above-listed reasons must be the essential and significant reason or reasons for the persecution: s 5J(4)(a). Further, the persecution must involve systematic and discriminatory conduct: ss 5J(4)(b), (c).
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)). This is an inclusive and not an exhaustive definition.
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Arbitrary deprivation of life and the death penalty are somewhat self-explanatory. Torture and cruel or inhuman treatment or punishment both involve intentionally causing severe pain or suffering, whether physical or mental. Degrading treatment or punishment is defined as intentionally causing extreme humiliation.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
CLAIMS AND EVIDENCE
In her protection visa application the applicant said she was born in Malaysia in [specified year], her ethnicity is Malay and she is a Malaysian citizen.
The applicant said she left Malaysia because the cost of living is too high and salaries are too low, she came from a poor family and had a limited education because she had to stay at home to help her mother raise her siblings, and therefore employers ignored her. The applicant did not declare any family members.
In response to Tribunal outreach prior to constitution of her case to a Member, the applicant stated that she wanted to add more reasons for her application.
About a week before the hearing the applicant submitted a letter from her Doctor stating that she is on a mental health plan being treated for depression and anxiety. She submitted material supporting that Australia is concerned about mental health as an aspect of wellbeing. She also submitted a written statement. In it she said her parents were divorced and she was raised by her mother and stepfather. She left high school because she was molested by a male student and was consequently bullied by other students, remaining traumatised to this day.
She found out her mother was borrowing money from a loan shark to bail her stepfather out of prison. Her stepfather is a drug addict and has been in and out of prison.
In 2018 she was sleeping alone in the living room and her stepfather was touching all over her body. He warned her not to scream or tell anyone. The next day she told her mother what had happened. They went to the police station and made a report. Her mother told her biological father what had happened and he told her to retract the police report for an unknown reason. From this time the applicant had trouble with her mental health and felt suicidal.
The applicant knew someone in Australia and decided to come here to get away from her problems back at home. She then decided to stay here and applied for protection. She had come from a problematic family and they did not get enough give her enough love, she was scared of her stepfather, including that he may sexually assault her again, and traumatised by what happened, she did not feel safe and was unhappy and suicidal.
At the hearing the applicant said she used to have [specified family members] but they had both passed away, [details deleted]. Her parents divorced when she was 7 or 8, she has only met her father a few times. Neither parent had any more children. The applicant went to school until she was [age] and then worked at the night market with her mother.
The applicant outlined the claimed sexual assault by her stepfather in line with her written statement.
The Tribunal asked the applicant why her father wanted the police complaint against her stepfather withdrawn. The applicant said she thought it was out of sympathy. She said she was no longer able to obtain a copy of the report from the police because it had been withdrawn.
The applicant said she would have to live with her mother if she went back to Malaysia, as she had no where else to go. Even if she did not live there she would be afraid because there was a lot of crime.
The applicant claimed that she did tell the person who wrote her protection application what had happened to her, but they did not include it. The Tribunal observed that it was difficult to see why someone would have left this information out. The Tribunal asked the applicant if she read the delegate’s decision, noting that she had submitted a copy of it with her review application. The applicant said she only read it when she was contacted in the pre-hearing outreach.
The Tribunal noted that the applicant suffered from anxiety and depression but that this may not constitute a protection ground.
The applicant’s mother gave evidence over the phone from Malaysia. She recounted the sexual assault in terms consistent with those in the applicant’s written statement (except using the expression rape rather than sexual touching). Indeed at the point where she stated that the police report was withdrawn on the request of her ex-husband for an unstated reason, she seemed to be reading from the applicant’s statement. The Tribunal asked if she was doing so, and she agreed that she was. Asked why the police report was withdrawn, the applicant’s mother said she did not know why. She said she remained with her second husband because she needs someone to help pay back her loans and she wanted to give him another chance, and he needs to work with her at the market. Asked if there were any records of her second husband being in prison because of drug use she said there not, they had been discarded. She said her daughter might not be safe if she came back and lived at home and she had nowhere else to live in Malaysia.
FINDINGS AND REASONS
Based on the information in her application the Tribunal finds that the applicant’s country of nationality is Malaysia.
Section 367A of the Migration Act requires the Tribunal to draw an unfavourable inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or evidence presented before the primary decision.
The applicant claimed to fear gender-based harm, and the Tribunal approaches the claims from the perspective that women are a particular social group in Malaysia. She did not claim that all women in Malaysia face a real chance of persecution, but that she had been molested by a high school student and by her stepfather.
However, the applicant’s initial claims were centred on economic and employment concerns in that she was not able to compete well for employment due to having left school at a young age because she had to help her mother.
The applicant did not have a reasonable explanation why her recent claims were not made at the primary stage. It did not make sense why a person who helped her with her application would have left out the gender-based claims. The Tribunal therefore draws an adverse inference as to the credibility of those claims.
Having drawn that inference, there were further credibility problems with her claims. Her mother as a witness was not recollecting from her own memory but drawing heavily on the applicant’s written statement. This would not have been necessary if the claims were true. Moreover, neither the applicant nor her mother could explain the applicant’s biological father’s interest in having the police complaint against her stepfather withdrawn. This was important considering the claimed risk to the applicant’s safety. And, of course, there is no record of them having been to the police station in the first place, or any records of the stepfather having been in prison.
The Tribunal does not accept that the applicant was molested by anyone, or that her stepfather is a drug addict and has been to prison, or that her mother had to bail him out by borrowing from a loan shark. It therefore does not accept that she faces a real chance of harm in connection with these claims.
Concerning her original claims, the Tribunal understands that she is not qualified for well-paying work in Malaysia but there is no evidence she faces serious harm involving systematic and discriminatory conduct. The Tribunal accepts that she suffers from anxiety and depression but no claim or evidence was made that this presented her with a risk of serious harm involving systematic and discriminatory conduct.
The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm as defined in ss 5J(4) and (5) for any of the reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
With regard to the complementary protection provisions, just as the Tribunal is not satisfied that there is a real risk of the applicant being seriously harmed, it is also not satisfied that there are substantial grounds to believe there is real risk the applicant will suffer significant harm as defined in s 36(2A).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
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.
Date of hearing: 4 October 2024