1915666 (Refugee) - [2025] ARTA 1126

1915666 (REFUGEE) [2025] ARTA 1126 (9 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1915666
Tribunal:General Member S Fitzsimons
Date:9 January 2025

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

Statement made on 09 January 2025 at 11:46am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – fear of harm based on being liable for repayment of a loan taken out by her stepfather from a loan shark – evidence was consistently vague and lacking in substantive detail – not satisfied that the applicant faces a real risk of serious or significant harm – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
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 Immigration and Multicultural Affairs on 15 June 2019 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 17 June 2019. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Tribunal can continue this review that commenced in the AAT and consider and determine the matter accordingly.[1]
[1] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
The applicant who claims to be a national of Malaysia, applied for the visa on 13 November 2018. The delegate refused to grant the visa on the basis that she was neither a refugee nor owed complementary protection.
The applicant appeared before the Tribunal on 12 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s36 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 s36(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…

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 1915666 (Refugee)

Details

AGLC: 1915666 (Refugee) [2025] ARTA 1126
Case: [2025] ARTA 1126
Decision Date: 9 January 2025

CaseChat Overview and Summary

The matter before the Tribunal involved an application for a protection visa by a Malaysian citizen, who feared harm based on her alleged liability for the repayment of a loan taken out by her stepfather from a loan shark. The applicant claimed she left Malaysia due to her family's financial difficulties and the unsafe environment created by her stepfather's gambling and debt. The Tribunal was required to determine whether the applicant qualified for a protection visa or was entitled to complementary protection as defined in s36(2) of the Migration Act 1958.

In reaching its decision, the Tribunal considered the evidence provided by the applicant and the relevant statutory guidelines and country information assessments. The Tribunal noted that the applicant's claims were vague and lacked substantive detail. The Tribunal also found that the applicant did not satisfy the criteria for complementary protection as she could not establish a real risk of significant harm in Malaysia.

The Tribunal concluded that the decision not to grant the applicant a protection visa should be affirmed, as the evidence did not demonstrate a well-founded fear of persecution or a real risk of significant harm. The Tribunal found that the applicant's claims were not sufficiently detailed or supported by evidence to establish a credible fear of harm based on her alleged liability for her stepfather's debt.

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

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal has before it a copy of the applicant’s Malaysian passport which was included with her protection visa application. The delegate was satisfied of the applicant’s identity. At the hearing the applicant told the Tribunal she is a Malaysian citizen which the Tribunal accepts. The Tribunal finds she is a Malaysian citizen and has assessed her protection claims with Malaysia as the receiving country. The applicant’s personal background The applicant was born on [date] [in] the state of Terengganu in Malaysia. When she was about [age] year of age her biological parents gave her to another couple (who she referred to throughout the hearing as her stepfather and stepmother). She told the Tribunal that her biological parents could not afford to raise her which is why they gave her to her stepparents. She gave evidence that this arrangement was an informal one, not a legal arrangement. The applicant told the Tribunal that at the time this arrangement occurred, her biological parents gave her stepparents her birth certificate and identity documents which are the documents she then used later to apply for her Malaysian passport. The passport she used to come to Australia was the first passport she had ever had. She told the Tribunal that her surname comes from her biological father. The applicant gave evidence to the Tribunal that she has lost contact with her biological parents. She lived with her stepmother and stepfather throughout her childhood and has no stepsiblings. The person she refers to in her visa application as her adopted brother is not related to her. Rather he is an old friend she knew from school. She completed primary school in 2010 when she was [age] years old. She did not attend secondary school. After leaving school she worked in a [workplace] and sometimes worked in a [store]. The applicant told the Tribunal that she left her stepparents family home in July 2018, about a month before she came to Australia. She said she has not had any contact with her stepmother since February 2018 and with her stepfather since late July 2018 when she left the family home. She said that after leaving her home she went to Kelantan for about three weeks and she worked[doing specified work]. She then went to Kuala Lumpur for about a week and flew to Australia from Kuala Lumpur. She arrived in Australia on [date] August 2018. Since living in Australia she has worked in a [workplace] and has also [did other work]. The Tribunal accepts each of the above matters to be true. The applicant’s claims for protectionEvidence before the Department The applicant’s protection claims were contained in her visa application form. The only other document she provided to the delegate was her Malaysian passport. In her protection visa application form when asked the question why she left Malaysia, the applicant stated: “My foster family has grown up with long debt. I’m happy to find my family, my adopted brother. I always wanted to take advantage of that. I complained to my adopted mother, my adopted mother did not care, my life was not as free as other adolescent. My adopted father love to play gambling. When I lose my place sometimes I cannot bear this hurdle. I try to complain about my neighbours but my aunty ignores the pain I have. I have a friend, I always complain about the problem. I wanted my friend. I helped her but her parents did not allow, I was determined to escape with some of my friend’s help without her parents knowledge. Arrived in Kelantan but my fate was bad because I met my long friends, I ran for help and came across a good uncle, I told me all my problems but the uncle had just stretched out a little. I told me to flee from here, after that I arrived in Kuala Lumpur, I was looking for work. After my job was working to bear my life, but my life in Kuala Lumpur was not safe because I was long around everywhere, because of the pain I took 20 years does not end I’m determined to run out of the country.”[2][2] Protection visa application form, Department File No: [DELETED], document ID: 5825771, applicant’s handwritten answer to question 76, page 29 (Form 866) – noting that the Tribunal has copied spelling and grammatical errors verbatim

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 issues to be determined in this case are whether the applicant is either a refugee or entitled to complementary protection as set out in s36(2) of the Act. The applicant’s claims relate to a fear of harm based on her being liable for repayment of a loan taken out by her stepfather from a loan shark. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.What is the applicant’s country of nationality? The Tribunal has before it a copy of the applicant’s Malaysian passport which was included with her protection visa application. The delegate was satisfied of the applicant’s identity. At the hearing the applicant told the Tribunal she is a Malaysian citizen which the Tribunal accepts. The Tribunal finds she is a Malaysian citizen and has assessed her protection claims with Malaysia as the receiving country. The applicant’s personal background The applicant was born on [date] [in] the state of Terengganu in Malaysia. When she was about [age] year of age her biological parents gave her to another couple (who she referred to throughout the hearing as her stepfather and stepmother). She told the Tribunal that her biological parents could not afford to raise her which is why they gave her to her stepparents. She gave evidence that this arrangement was an informal one, not a legal arrangement. The applicant told the Tribunal that at the time this arrangement occurred, her biological parents gave her stepparents her birth certificate and identity documents which are the documents she then used later to apply for her Malaysian passport. The passport she used to come to Australia was the first passport she had ever had. She told the Tribunal that her surname comes from her biological father. The applicant gave evidence to the Tribunal that she has lost contact with her biological parents. She lived with her stepmother and stepfather throughout her childhood and has no stepsiblings. The person she refers to in her visa application as her adopted brother is not related to her. Rather he is an old friend she knew from school. She completed primary school in 2010 when she was [age] years old. She did not attend secondary school. After leaving school she worked in a [workplace] and sometimes worked in a [store]. The applicant told the Tribunal that she left her stepparents family home in July 2018, about a month before she came to Australia. She said she has not had any contact with her stepmother since February 2018 and with her stepfather since late July 2018 when she left the family home.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(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: 12 December 2024ATTACHMENT - 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

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