2009257 (Refugee) - [2021] AATA 1012

2009257 (Refugee) [2021] AATA 1012 (8 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2009257

COUNTRY OF REFERENCE: Malaysia
MEMBER:Sheridan Lee
DATE:8 April 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 April 2021 at 5:03 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victims of loan sharks – family of divorced women – fear of harm from mother’s ex-husband – member of the family unit – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Re: Woolley; ex parte applicants M276/2003 by their next friend GS (2004) 225 CLR 1
SZLSM v MIAC (2009) 176 FCR 539
SZSHV v MIBP [2013] FCCA 1784
SZSHY v MIBP [2014] FCA 212
SZTZA v MIBP [2014] FCCA 2316
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [an age]-year-old Malaysian child. Protection was sought on behalf of [the applicant] on the basis that her parents would be harmed by loan sharks to whom they owe money and her mother would be harmed by her ex-husband. The visa was applied for on 21 November 2019 and the delegate refused to grant the visa on the basis that effective state protection would be available.
[The applicant] was born in Australia on [date] to Malaysian parents, [Mr A] and [Ms B]. On 21 November 2019, an applicant for protection was made on her behalf. Under the section regarding ‘your reasons for claiming protection’ the response was listed as ‘just follow family reason’. The form was signed by the applicant’s mother, [Ms B].
Attached to the application form was a written statement dated 14 November 2019, made by [Ms B]. The statement outlined that the application was made because when she made her own application for protection she forgot to include [the applicant]. The statement explained that the applicant had a birth certificate but did not have a passport. Finally, the statement requested that the application be ‘put under my visa or he [sic] father visa’.
The Tribunal has before it a birth certificate for [the applicant] issued by the Victorian Registry of Births, Deaths and Marriages. The certificate lists the mother as [Ms B] and the father as [Mr A]. The Tribunal viewed identification documents for both [Ms B] and [Mr A] and accepts them to be citizens of Malaysia. No passport was provided on behalf of the applicant, however I accept her to be a Malaysian citizen by virtue of descent and will assess their claims against Malaysia as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
Parents in their capacity as guardians of young children have the power under common law to make decisions on behalf of the child, including immigration decisions, provided the child does not have competence to make the decision.[1] Where a parent or guardian holds him or herself out as acting as the representative for an applicant who is a minor, the Tribunal is entitled under the common law and the Migration Act to treat those actions of the parent or guardian undertaken on behalf of the applicant as the actions of the applicant.[2] In this case, I accept that [Ms B] represented her young children throughout the application process, including by giving evidence on their behalf.
[1] Re: Woolley; ex parte applicants M276/2003 by their next friend GS (2004) 225 CLR 1 at [102]–[104]. See also SZTZA v MIBP [2014] FCCA 2316 at [19], [21].
[2] In SZLSM v MIAC (2009) 176 FCR 539 at [24], the Court found there was no provision in the Migration Act which overrides the common law principle that a guardian may be characterised as acting for his or her children where his or her conduct warrants such a characterisation. The applicants’ father had clearly adopted the role of a guardian by signing the application form, corresponding with the Tribunal and giving oral evidence on their behalf and the Tribunal was entitled to treat his actions as the actions of the applicants. In SZSHV (as Litigation Guardian for SZSHW) v MIBP [2013] FCCA 1784, as the infant applicant’s father was her common law guardian, the Tribunal was found to have discharged its obligation under s 424AA when it put adverse information to her father for comment. Upheld on appeal: SZSHY v MIBP [2014] FCA 212.
CRITERIA FOR A 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 (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.
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, I have 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
Background
[The applicant] was born in Australia on [date] to Malaysian parents, [Mr A] and [Ms B]. [Mr A] first arrived in Australia [in] March 2016 on a Subclass 601 Electronic Travel Authority visa. He applied for protection on 30 November 2016. [Ms B] first travelled to Australia from Malaysia [in] March 2016. She then departed Australia [in] May 2016 and returned with her son, [Child C], [in] June 2016. [Ms B] again departed Australia [in] July 2016, with her most recent arrival to Australia being [in] August 2016.
[Ms B] applied for protection on 22 August 2019, including her son as a secondary applicant.
[Mr A] first appeared before the Tribunal to give evidence and present arguments on 30 January 2020. [Ms B] appeared before the Tribunal via videolink to give evidence and present arguments on 19 August 2020. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
On 16 November 2020, the Tribunal wrote to advise the applicants that it wished to discuss further issues that had arisen, and a second hearing would be required. The Tribunal sought the applicants’ consent to hold a combined hearing with each member of the family in order to discuss common issues. On 1 December 2020, [Ms B], responded on behalf of the family to advise that they would be in attendance.
A second hearing was conducted in-person at the Tribunal’s Melbourne premises on 9 December 2020. In attendance were [Ms B], [Mr A], and their two young children. At the hearing, the Tribunal provided an opportunity for [Mr A] and [Ms B] to provide evidence together and separately. All hearings were conducted with the assistance of an interpreter in the Malay and English languages.
At both Tribunal hearings she attended, [Ms B] confirmed that no distinct claims were made on behalf of her children. Both children were seeking protection on the basis of the circumstances of their parents.
At the conclusion of the hearing, I advised both [Mr A] and [Ms B] that in addition to considering their claims separately, I would consider if they are the member of the family unit of a person who is owed protection. If I made a positive finding for any member of the family it would have implications for each of them as a member of the family unit. On the other hand, if I made an adverse finding on one it would also have consequences.
Claims for protection
[The applicant] sought protection in Australian on the basis that her parents would be harmed by loan sharks to whom they owe money and her mother would be harmed by her ex-husband. Those claims were considered by the Tribunal in separate decisions. In addition to those claims raised by [Mr A], [Ms B], and [Child C], the Tribunal considered if the applicants would face persecution on the basis of their race, nationality, political beliefs or activities, religion or ethnicity. In each case, the Tribunal found that the applicants do not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason if they were returned to Malaysia. As such, the applicants were determined not to be refugees within the meaning of s.5H and did not fall within Australia’s protection obligations under s.36(2)(a).
The Tribunal further found that that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia there is a real risk that they will suffer significant harm: s.36(2)(aa).
The Tribunal found that neither of the applicant’s parents face a real chance or real risk of serious or significant harm. The particulars of the applicant’s claims were put forward by her mother in two separate hearings and I note that no separate claims were advanced on behalf of [the applicant]. Any concerns regarding the substantive evidence were discussed with [Ms B] at those times. Given the finding in respect of the parents, no additional considerations arose on the facts. As such, the Tribunal must find that the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.
On 1 March 2021, the Tribunal wrote to the applicant to invite her to comment on or respond to information which it considered would, subject to her comments or response, be the reason or part of the reason, for affirming the decision under review. In particular:
“…On your application for protection form, [Mr A] and [Ms B] were listed as your father and mother. [Child C] was listed as your brother.
On 30 November 2016, [Mr A] applied to the Department of Home Affairs (“the Department”) or a Subclass 866 visa.
On 10 March 2017 [Mr A’s] application with the Department was refused. [Mr A] applied to the Tribunal for merits review of the Department’s decision,
On 22 August 2019, [Ms B] and [Mr A] applied to the Department for Subclass 866 visas and on 16 September 2019 those applications were refused.
On 22 September 2019, [Ms B] applied to the Tribunal for merits review of the Department’s decision.
On 21 November 2019, you applied to the Department for a Subclass 866 visa.
On 15 May 2020, your application with the Department was refused, You applied to the Tribunal for merits review of the Department’s decision.
On 9 February 2021 the Tribunal affirmed the decision not to grant [Mr A] a Subclass 866 visa.
On 26 February 2021, the Tribunal affirmed the decision not to grant [Ms B] and [Mr A] Subclass 866 visas...”
The letter advised that the information was relevant to the review because it indicated that the applicant could not satisfy s.36(2) of the Act on the basis of being a member of the same family unit as another non-citizen that holds a protection visa, in this case [Mr A], [Ms B] or [Child C]. An extract of s.36(2) of the Act was attached for the applicant’s reference. The letter further advised that if the Tribunal relied on the information in making its decision, it would form part of the reason for affirming the decision under review.
On 15 March 2021, [Ms B] responded to the invitation. The response confirmed that the individuals listed were members of the same family and acknowledged that the decisions to refuse protection visas to the other family members had been affirmed by the Tribunal. The response also requested additional time so that the family could save the money required to appeal the decisions with the Courts.
The Tribunal has elected to proceed to make a decision without further delay. The Tribunal notes that should the applicants wish to lodge an appeal, they must comply with the application process set out by the courts. Any time restrictions that apply in the circumstances would apply in each of the three separate applications for protection lodged by the family. Delaying a decision in the current matter would not impact the requirement for [Mr A] and [Ms B] to appeal those decisions within the applicable timeframes. Further, no information was supplied by [Ms B] to indicate how long it would take the family to raise the money. The Tribunal is not inclined delay its decision making indefinitely.
The applicant does not satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Lee
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.
…