1928928 (Refugee) - [2024] ARTA 789

1928928 (REFUGEE) [2024] ARTA 789 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1928928
Tribunal:General Member P Gardner
Date:02 December 2024

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

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – coerced into sexual relationship – vague claims and no supporting evidence – delay in applying for protection – applied after significant and unexplained period as unlawful non-citizen – consent to decision without hearing – responsibility to provide sufficient evidence to establish claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(c)
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Zhang v RRT [1997] FCA 423
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 02 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused to grant the visa on the basis that they were not satisfied the applicant is owed protection by Australia.
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 (Cth) (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.
BACKGROUND
The review applicant is a national of Malaysia, born in [Year]. He initially arrived in Australia [in] February 2014 on an electronic travel authority, before applying and being granted a tourist visa on 20 May 2014 and then a student visa on 21 August 2014. Between [February] 2015 and [March] 2016, he travelled to Singapore on 3 occasions, ultimately returning on [April] 2016. His student visa ceased on 08 October 2016, and he applied for a protection visa on 13 June 2019 (PV Application). He applied to review the delegate’s decision on 13 October 2019 (Review Application).
The review applicant appointed a migration agent as his authorised representative on 17 April 2024. His authorised representative has made written submissions to the Tribunal on two occasions. Firstly, on 17 April 2024 at which time his representative requested an oral hearing; and secondly, on 20 November 2024 in response to an invitation to a hearing issued by the Registry on 08 November 2024. In the second set of submissions, the review applicant requested a decision on the papers.
The invitation to the hearing states:
You should provide a written submission setting out all claims made and maintained by the applicant by 25 November 2024, if you have not already done so.
...
If you are proposing that a witness give evidence at the hearing, a witness statement setting out the witness's evidence should be provided to us by 25 November 2024.
...
You can use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.
Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.
The documents provided to the Tribunal on 20 November 2024 do not include a copy of the requested response to hearing notice, but do include a signed statement from the review applicant:
I am not attending the scheduled hearing, please review the documents provided and make a decision accordingly.
For the reasons that follow, I have decided to make a decision without a hearing.
Decision without a hearing
The Tribunal has power to decide some applications without a hearing. The relevant power in this case is set out in s 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), which relevantly provides:
(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.
...
(3) This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and
(b) either:
(i) the decision is wholly in favour of the applicant; or
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The Department is a non-participating party and the review applicant has expressly requested that the Tribunal make a decision without holding a hearing. There is no ambiguity in his request.
To meet the condition in s 106(3)(c), I must also be satisfied that it appears that the issues for determination in the proceedings can be adequately determined in the absence of a hearing. Those issues are:
·The review applicant’s identity, nationality and receiving country;
·whether the review applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act if returned to their receiving country and if not;
·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act; and
·whether the review applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
In this case, it appears to me that those issues can be adequately determined without a hearing. I have been provided with the Department’s file, which includes identity documents, the PV Application, biographical information about the review applicant, details of his protection claims and the decision record. In conjunction with the written submissions provided by his representative on the two occasions referred to above, I can determine the review applicant’s identity and his receiving country. I can also determine whether he meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Act.
In reaching this conclusion, I have considered the opportunities given to the review applicant to provide additional evidence to support his protection claims in his PV Application. This includes in the Review Application itself, and through written submissions made by his representative on two occasions. I note that the review applicant initially requested an oral hearing, before making the request to have the application determined on the papers.
Evidence before the Department
The delegate made the decision to refuse the application for a protection visa without inviting the review applicant to an interview, based on information provided in the PV application form.
Evidence before the Tribunal
In addition to the Department’s file, I have considered:
·The Review Application form; and
·The submissions provided by the review applicant’s representative on 17 April 2024 and 20 November 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 (the refugee criterion).
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the review applicant is a person in respect of whom Australia has protection obligations under the “refugee” criterion, or any 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.
For the following reasons, I have concluded that the decision under review should be affirmed.
Review applicant’s identity and country of reference
The review applicant claims to be a citizen of Malaysia and has provided a copy of his Malaysian passport. His citizenship was accepted by the delegate at first instance. There is no evidence to suggest this is a bogus document and, as such, I accept that the review applicant is a citizen of Malaysia.
Review applicant’s personal background
According to his Review Application and PV Application, the review applicant:
·was born in Sarawak, Malaysia;
·Completed High School in Sarawak in [Year];
·Worked at a [company] in Sarawak from [Year] to 2014 (when he travelled to Australia);
·indicates that he is a Buddhist;
·identifies one living family member, his father, who lives in Sarawak; and
·does not identify any partner or children.
Review applicant’s claims for protection
The review applicant’s claims for protection were made in his PV Application. The Review Application and submissions made by his representative do not raise new claims. Those submissions argue that the delegate failed to deal with aspects of the claims identified in the PV Application.
He submits that he is a person who has a well-founded fear of persecution “based on membership of a particular social group – those being forced into unwanted familial and social situations under duress, which is aggravated by the potential misuse of Islamic Law as a tool for coercion in his personal case.”
It is convenient to briefly summarise the circumstances the review applicant refers to in his PV Application and Review Application.
The review applicant claims that:
·one of his co-workers in Malaysia was a woman, employed as [an occupation] (Co-Worker); and
·while working overtime, his Co-Worker: “gave me a drink and I became unconscious. When I [woke] up, we [were] both unclothed. She told me I raped her.”
The review applicant claims that his Co-Worker has subsequently:
·coerced him into repeated unprotected sex, including with the goal of becoming pregnant;
·moved into his house;
·become emotional and thrown glasses at him;
·recorded video footage of sexual activity between the review applicant and the Co-Worker, and threatened to share such footage, including via [Social media]; and
·threatened to “report this matter to the Islamic Party”.
The review applicant does not name the Co-Worker, and no information has been provided about when the events described in the PV Application are said to have taken place.
The review applicant claims that he considered raising the matter with police but decided not to out of concern about exposure of the video footage held by his Co-Worker.
The review applicant also claims that he attempted to relocate to another location but was unable to do so because his co-worker threatened him with disclosure of the video footage.
Assessment of the Applicant’s Claims
Section 5AAA of the Act makes a review applicant responsible for providing details of his claims for protection and for providing sufficient evidence to establish those claims. The relevant facts of the case will have to be supplied by the review applicant in as much detail as is necessary to enable the decision maker to establish those facts. A decision maker is not required to make the applicant's case. The Tribunal is not required to accept uncritically any and all of the allegations made by a review applicant.[1]
[1] Randhawa v MILGEA (1994) 52 FCR 437 at 451.
There is a significant delay between cessation of the review applicant’s student visa (on 08 October 2016) and lodgement of the PV Application (on 13 Jun 2019). I appreciate that the review applicant had other kinds of visa prior to October 2016, but the intervening period of more than two years is significant and unexplained.
I accept that the review applicant held a job at a [company] in Sarawak for the period from [Year] to 2014, but I am unable to be satisfied that the other events described by the review applicant in the PV Application occurred. In particular, I am not satisfied that anyone has threatened, harassed, forced, or otherwise coerced him into a sexual or domestic relationship against his consent, nor am I satisfied that anyone has made allegations of sexual assault or rape against him.
I have reached this conclusion because the claims are vague, lack detail and omit key information. I have also taken into account the significant delay in lodging the PV Application, which I consider supports a finding that the evidence given by the review applicant is not credible.[2]
[2] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
The criterion in s 5J(1)(a) contains a subjective requirement, that a review 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,[3] but it must be for reasons of race, religion, nationality, membership of a particular social group or religion.
[3] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Because I have am unable to be satisfied that the events described by the review applicant in the PV Application occurred, I cannot be satisfied that there is a real chance that the review applicant would be persecuted for one of the reasons set out in s 5J(1)(a) if he returned to Malaysia.
Does the review applicant satisfy the refugee criterion for protection?
For the above reasons, I am not satisfied that the review applicant has a well-founded fear of persecution, as required by s 5J(1)(a) of the Act. Accordingly, he is not a refugee within the meaning given in s 5H of the Act and does not meet the refugee criterion in s 36(2)(a).
Does the review applicant satisfy the complementary protection criterion for protection?
Having concluded that the review applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the review applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The same findings of fact apply to both the refugee criterion, and the complementary protection criterion in this case.[4] On the basis of those findings, I am not satisfied that there are substantial grounds for believing that there is a real risk that the review applicant would suffer significant harm if returned to Malaysia in the reasonably foreseeable future.
[4] MIAC v SZQRB [2013] FCAFC 33.
There is no suggestion that the review 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 review applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the review applicant a protection visa.
Date(s) of hearing:  N/A
Representative for the Applicant:             Stanley Chan
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.
…