1916033 (Refugee) - [2024] ARTA 94

1916033 (Refugee) [2024] ARTA 94 (29 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number:1916033

Tribunal:Tina Guthrie
Date:29 November 2024

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

Statement made on 29 November 2024 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – threats from family members – fear of physical assault – ostracisation from family – employment – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIMIA v VBAO of 2002 (2004) 139 FCR 405
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 12 April 2019 which was notified to the applicant on 18 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is now [age] years of age. The applicant who claims to be a national of Malaysia applied for the visa on 14 September 2018. The delegate refused to grant the visa on the basis that the information provided by the applicant did not provide a sufficient basis to satisfy the delegate that the applicant will face a real chance of persecution under s 5J(1)(b) of the Act on return to Malaysia. The delegate was not satisfied that there is a real chance the applicant will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) in the receiving country. The delegate found that there is no real chance the applicant would suffer serious harm for reasons of her loneliness, unmarried status, depression and false accusations from family members regarding a claimed debt. The delegate also found that there was no real risk of the applicant facing significant harm as defined in s 36(2A) if she returned to Malaysia in the foreseeable future. The delegate concluded that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2) of the Act.
The applicant appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Evidence before the Department
Identification documents
The applicant provided the Department with a certified copy of her Malaysia Identity Card (or MyKad). The applicant also provided the Department with a certified copy of her passport issued in Malaysia.
Application for a protection visa
The application for a protection visa completed by the applicant was stamped received by the Department on 14 September 2018.…

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.

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Details

Case: [2024] ARTA 94
Decision Date: 29 November 2024

CaseChat Overview and Summary

The applicant, a Malaysian national, sought a protection visa from Australia, citing threats from her family and fear of ostracisation. The application was reviewed by the Tribunal, which affirmed the delegate’s decision to deny the visa. The applicant presented evidence of familial conflict, including text messages from her brother, and claimed that her family’s actions amounted to persecution. The Tribunal considered the statutory criteria for a protection visa, including whether the applicant met the definition of a refugee under Australian law.

The primary legal issue was whether the applicant’s fear of familial harm and ostracisation constituted a well-founded fear of persecution, thereby satisfying the criteria for a protection visa. The Tribunal assessed the applicant’s claims against the statutory definitions of 'refugee' and 'well-founded fear of persecution', and examined whether the alleged harm met the threshold of serious persecution. The applicant’s claims were scrutinised to determine if they related to a characteristic that could establish membership in a particular social group, and whether there were available protections in Malaysia that could mitigate the risk of harm.

The Tribunal found that while the applicant experienced familial discord, it did not rise to the level of persecution as defined by the Migration Act. The Tribunal noted that the threats and ostracisation did not involve systematic and discriminatory conduct, nor did they relate to a characteristic that would establish membership in a particular social group. Furthermore, the Tribunal concluded that effective protection measures were available to the applicant in Malaysia, thereby negating the requirement for a well-founded fear of persecution. As a result, the Tribunal affirmed the delegate’s decision to deny the application for a protection visa.

The Tribunal’s decision was based on the applicant’s failure to meet the statutory criteria for a protection visa. The Tribunal did not find the applicant’s circumstances to constitute persecution, nor did it find that she met the complementary protection criterion. The decision was affirmed, and the application for a protection visa was denied.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.BACKGROUNDEvidence before the DepartmentIdentification documents The applicant provided the Department with a certified copy of her Malaysia Identity Card (or MyKad). The applicant also provided the Department with a certified copy of her passport issued in Malaysia. Application for a protection visa The application for a protection visa completed by the applicant was stamped received by the Department on 14 September 2018. The application states that the applicant left Malaysia [in] August 2017. The applicant states that her father, [and specified family members] reside in Malaysia. The applicant completed her education in [specified year], aged [age] years at the [College 1]. She worked at [Employer 1] from [year] to 2011 as [an occupation 1] earning 4,800 MYR per month. From 2012 to June 2017, she operated her own business generating a monthly salary of 5,000 MYR per month. The applicant provided the following reasons for why she left Malaysia:I came from a broken family since I was young. Father divorced my mother and siblings unsupported. My mother died in 2005. Siblings already have their own family. Each of them has lived their own lives. So my needs and virtues are badly ignored. As though I was not in need anymore. I was also evicted from my family and got out from the house and went anywhere and I chose Australia as my refuge. Why I choose Australian, because it is peaceful country in terms of providing and promise a good security system safe haven and also freedom. No racial tension and it is a free country. The applicant stated in her application that she had experienced the following harm in Malaysia:Due to I am [age] years old, single and no one is taking care of me and alone in the house, it may cause psychological harm, depression and mental torture in future. I’ve received multiple threats from my own siblings that have accused me for not settling the debt RM [amount] that I have never made. The applicant stated in her application that she feared the following may happen to her if she returned to Malaysia:My family will always threaten me regardless. They also alienated me and declared I am not a part of their family anymore. The applicant provided the following details about who would harm or mistreat her and why she thought this would happen if she returned to Malaysia:Due to I am [age] years old, single, no body is taking care of me and alone in the house, it may cause psychological harm, depression and mental torture in the future. I feel so belittled and I am so vulnerable to my very own family. I feel afraid to lodge and report since all my family comploting (sic) against myself I don’t think I could thrive in those situation in a long run. The applicant repeated the last paragraph as the reason why she did not think the authorities in Malaysia can and will protect her if she goes back to Malaysia. Delegate’s decision

Evidence

Evidence Before The Court

On 22 July 2024, the applicant provided a copy of the text messages she received from her brother that she had read to the Tribunal during the hearing. The messages and salient parts of the applicant’s evidence are further discussed below under the heading ‘Reasons and Findings’.CONSIDERATION OF CLAIMS AND EVIDENCECriteria 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. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) 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. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. 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.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).DECISION The Tribunal affirms the decision under review.Date of hearing: 18 July 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

Full text does not contain this section.