2001087 (Refugee)

[2021] AATA 620

2001087 (Refugee) [2021] AATA 620 (12 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001087

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Sean Baker

DATE:12 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 January 2021 at 4:35pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from ex-boyfriend – abusive relationship ended by applicant – no harm since end of relationship and long period of no contact – written claims on economic and political grounds abandoned at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 11 June 2019.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether the applicant has a well-founded fear of persecution or faces a real risk of significant harm if returned to Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Claims

10. The written claims made in her application for protection, in summary, are that:

    ·The government forced them out due to factors such as economics. They cannot be protected ‘from a serious human right’. They need to find a good life in Australia as the Australian government always gives opportunities to ‘get a very good human right’.

    ·They have not experienced any harm.

    ·They had no intention to move as it involves money and the Malaysian government has raised the cost of living.

    ·They have been helped, for example with BR1M. However, they have raised things like petrol, food, tolls etc.

    ·Moving to another place would involve family and they do not have money.

    ·Nothing will happen if they return. It is a matter of dirty politics, which they are sick and tired.

11. However, at the hearing her claims differed significantly from those above. She claimed, in summary, that she could not return to Malaysia because she was afraid her ex-boyfriend would harm her.

    Initial matter

12. This case was delayed because the applicant indicated that she did not wish to have a telephone or videolink hearing but wished to have a hearing in person because there as nowhere she could be in private. The Tribunal acceded to this request.  A hearing was set down in person for 12 January 2021. However, on being contacted by the Tribunal the applicant said she could not travel to Melbourne and requested that the hearing be conducted by telephone. This was done. At the hearing, I checked with the applicant that she was in private. She said she was. She asked however that if the hearing were to span several days she may not be able to be somewhere private on following days, but confirmed that she was in private on the day of the hearing. In the event, this was not an issue as the hearing was concluded on the day. She did not raise any further concerns or issues about the manner in which the hearing was conducted. She also noted that there were some Malay words from the interpreter she did not understand. I confirmed that she had requested a Malay interpreter and she said she had. I noted that she could indicate if she did not understand any words and I would ask the question differently. She indicated she could do this.

13. Having regard to her clear evidence at the hearing the Tribunal find that the applicant was in private and was able to participate fully in the Tribunal hearing via telephone.

    Fear of harm from ex-boyfriend

14. At the hearing the applicant said her ex-boyfriend had beaten her in Malaysia and then she had got married and he was looking for her and if he finds her, he is going to beat her further.

15. She said her ex-boyfriend was [Mr A], he was her school sweetheart. She explained that their relationship had been on and off since high school and then she has broken off the relationship in 2015. She said that in around 2015 or 2016 she had married a [Mr B] in [Country] (where [Mr B] is still working) and around 2017 they had a child, who is living with the applicant’s mother in law in Johor.

16. [Mr A], she said, had beaten her during their relationship, quite badly. She said that she had ended the relationship in 2015 as she could not take his beating any further. She fears being beaten by him again if she returns.

17. I asked if, after she had separated from [Mr A] in 2015, he had done anything to her. She said he was looking for her but she did not respond. I asked if after they had separated he had harmed her and she said he had called her and wanted to know who she was with but she did not answer his calls and then changed phone numbers so he was not able to call her any further. She said he did ask her friends about her. I asked when she had changed her number and she said a long time ago. I asked if he had contacted her after she had changed her phone number and she said he did not.

18. She said that she feared if she returned that her friends would tell him she had returned, and she was afraid something might happen to her. I noted that she had said that after they separated in 2015, he had not harmed her and after she changed her number he had not contacted her so why would he now. She said she was afraid he would get her contact details from others as he had beaten her in the past. She said she was afraid he might come up to her again, she said every now and then he looks for her.

19. I noted that I needed to assess whether there was a real chance or a real risk of this occurring and from what she had told me I was not sure there was. She said she was scared as he has mental health issues and he had beaten her very hard when they were together. I noted that this had occurred prior to their separation in 2015.

20. I asked the applicant where she would return to in Malaysia if she had to return. She said she would go to Kuala Lumpur where her sister and mother live and live with her sister. I noted that she said that [Mr A] had lived in Sarawak. She agreed but said that she did not know where he was now and it had been five years that they were not in touch. I noted that I was not sure that if she returned to Kuala Lumpur that there would be any real chance or real risk of [Mr A] being motivated to find her or being able to find her there. She said she was afraid he would come looking for her.

21. The applicant said she feared [Mr A] and no one else. She said she had never had any difficulties with the authorities.

22. I asked her about the claims in her written application. It was apparent that she was not aware what had been written in her application. She said that it was true that economic factors had been part of the reason for her coming to Australia as she needed to support her family. She said the serious human rights must refer to the issue with her ex-boyfriend. She said she was not aware who had written that she was sick and tired of dirty politics. 

23. I asked if she could find work if she returned to Kuala Lumpur. She said she did not know as she had not ever worked there. I noted she had told me she had worked in Sarawak, [Country] and Australia, that Kuala Lumpur was a large city and so I might think she could find work. She said she understood, and she said she agreed.

24. I found the applicant’s evidence curiously vague about matters such as her marriage and the inception of her relationship with her husband, about which she was unable to tell me when these things had occurred with precision. However, I do not consider these concerns material and I largely accept the applicant’s evidence. I accept that she was in a relationship with her school sweetheart, [Mr A], and I accept that he was abusive throughout their relationship. I accept that they separated in 2015. I accept, on her evidence, that after they separated, he attempted to contact her by telephone but that she did not respond and then changed her phone number, after which he did not contact her. I accept that he asked her friends about her.

25. I find, on her evidence, that after they separated, [Mr A] did not harm her. I find that other than trying to contact her and contacting her friends to ask about her, he has not done anything further after their separation in 2015.

26. I find that the applicant has worked in Malaysia, [Country], and in Australia. I find that her sister and mother live in Kuala Lumpur, her husband is working in [Country] and her child is in Johor, and that on her clear evidence if she were to return she would live in Kuala Lumpur with her sister.

27. On her evidence, I do not accept that she has had any difficulties with the government or authorities in Malaysia. I do not accept her written claims that ‘The government forced them out due to factors such as economics. ‘In particular I note that she claimed that this referred to her claim that she needed to support her family.

28. I find that when the applicant in her written application stated that ‘They cannot be protected ‘from a serious human right’ she was referring only to the situation she has described with her ex-boyfriend and not to any other breach of human rights.

29. I find the rest of her written claims, on her very clear evidence at the hearing, do not relate specifically to her situation, rather, that her claims revolved around her fear of her ex-boyfriend, and her desire to support her family. I do not accept that, whether or not true, ‘the Malaysian government has raised the cost of living’ forms part of the applicant’s claims, nor that she has been helped, for example with BR1M, nor that whether the authorities have raised things like petrol, food, tolls etc has a direct bearing on her claim for protection. I do not accept, on her evidence that she has any involvement or is affected in any way by ‘dirty politics’. I do not accept that she and her family are unable to relocate and do not have any money.

    Will the applicant be persecuted on return to Malaysia?

30. I have carefully considered the applicant’s claims and evidence and have made findings on that evidence above.

31. I find on her clear evidence, both in writing and at the hearing that the applicant’s claims in her protection application do not bear directly on her actual claims as made at hearing. As above, I have accepted the claims made at hearing and I accept her written claims as far as they can be reconciled with her evidence at the hearing.

32. I have accepted, as above, that the applicant was in an abusive relationship from school or shortly afterwards until 2015 with [Mr A]. However, I have also found, on her clear evidence, that after they separated in 2015, he did not harm her, and that whilst he attempted to contact her by telephone, after she changed numbers he no longer contacted her. After their separation, it appears to me that [Mr A] took very few actions to locate or harm the applicant. Even if it is accepted that he sporadically since that time attempts to contact her, on her evidence this did not appear to be a significant effort on his part. I do not accept that, whether or not he has mental health issues, this has any bearing on his willingness or ability to now locate her or harm her.

33. The applicant’s clear evidence was that [Mr A] has taken very few actions since they separated. I appreciate, given she has been in a long-term abusive relationship, that she would be fearful of him. But on her evidence, I do not accept that there is any more than a remote and far fetched chance that he would seek now, some five years later, to find her or if he did locate her, to harm her in any way. There is simply insufficient evidence of any intent on his part to harm her since they separated.

34. The applicant claimed that she feared only [Mr A].

35. I have also had regard to her claims that she wishes to support her family and travelled to Australia, in part, to support her family. However, as I noted to her at the hearing, I accept her evidence that she would return to Kuala Lumpur and live with her sister. I find therefore that she would have accommodation and family support there. I accept that she has worked in Malaysia, [Country] and Australia, and that she would return to the largest city in Malaysia. I find that on these facts, she has very good prospects of returning to Malaysia and finding a job to support her family. When I put this to her she conceded this.

36. I find that the applicant can return to Malaysia, live with her sister in Kuala Lumpur and have good prospects of finding employment there so that she would be able to support her family.

37. Having carefully considered the applicant’s claims, I find that there is no real chance of the applicant suffering serious harm for reasons of her past relationship with [Mr A] or her need to support her family or for any other reason from [Mr A] or anyone else on return to Malaysia now or in the reasonably foreseeable future.

    Is there a real risk the applicant will suffer significant harm if removed from Australia to Malaysia?

38. At the hearing I asked the applicant if there was any other reason or basis on which she thought she would be harmed on return. She responded that there was not.

39. I find on her clear evidence, both in writing and at the hearing that the applicant’s claims in her protection application do not bear directly on her actual claims as made at hearing. As above, I have accepted the claims made at hearing and I accept her written claims as far as they can be reconciled with her evidence at the hearing. I find there is no real risk of her suffering significant harm for any reason connected to those written claims.

40. In relation to her claims and evidence made to the tribunal, I have largely accepted those claims as above.  Above I have considered the applicant’s claims in relation to the chance of persecution on return and found that there is no real chance of her being harmed for reasons set out above. I rely on my findings and my reasoning above. I find that there is no real risk she will suffer significant harm on the basis of the information before me and the claims of hers which I have accepted.

41. I find that there is no real risk the applicant will suffer significant harm on any basis identified or cognisable if removed from Australia to Malaysia.

    Conclusions

42. 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).

43. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

44. 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

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

    Sean Baker
    Member

    
    

    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.

    …