2012883 (Refugee)
[2025] ARTA 738
•18 February 2025
2012883 (REFUGEE) [2025] ARTA 738 (18 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2012883
Tribunal:Kelvin Defranciscis
Date:18 February 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 18 February 2025 at 9:17am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – lesbian – single mother – victim of loan shark – fear of killing – family violence allegations – mental health issues – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
McDonald v Director-General of Social Security (1984) 1 FCR 354
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Lay Lat (2006) 151 FCR 214
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZBQ v MIAC [2005] FCA 143Any 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
BACKGROUND
The applicant, who was born in [specified year], is a national of Malaysia. She arrived in Australia [in] May 2017, as the holder of a Visitor visa.
On 11 December 2019, the applicant applied for a Protection visa (protection visa application).
On 10 August 2020, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) (delegate’s decision).
On 15 August 2020, the applicant applied to the Administrative Appeals Tribunal[1] for review of the delegate’s decision.
[1] As it was known at the time – now known as the Administrative Review Tribunal. Referred to as the Tribunal in this decision.
On 23 September 2024, the Tribunal advised the applicant that it would soon be allocating the matter to a member and asked that she complete a pre-hearing information form.
On 25 September 2024, the applicant completed the pre-hearing information form in which she indicated her availability for a hearing and provided further information about her claims for protection.
On 29 November 2024, the applicant was notified that the matter had been listed for a hearing by videoconference on 2 January 2025. The applicant was asked to complete a ‘response to hearing notice form’.
On 4 December 2024, the applicant provided the Tribunal with a completed response to hearing notice form in which she indicated that she would be attending the videoconference hearing on 2 January 2025.
On 2 January 2025, the applicant did not appear for the videoconference hearing at 9am, as scheduled. The Tribunal contacted the applicant by telephone at 9am and at 9:15am and both times the applicant answered the phone and advised she was connecting to the hearing. At 9:30am the hearing was cancelled due to the applicant’s non-appearance.
At 11:27am on 2 January 2025, the applicant telephoned the Tribunal registry to advise that she had missed her hearing due to technical issues. The registry staff suggested to the applicant that she write to the Tribunal to advise about her non-appearance, noting the hearing had been cancelled.
At 12:45pm on 2 January 2025, the applicant emailed the Tribunal. The body of the email had no text other than the applicant’s name and reference number. The applicant had attached two statutory declarations to the email, which related to her claims for protection rather than the reasons for her non-appearance.
Although no further explanation was provided as to the technical issues that the applicant experienced in connecting to the hearing, in the circumstances, rather than dismiss the application for non-appearance, the Tribunal re-listed the hearing for 15 January 2025.
A hearing notice was sent to the applicant on 6 January 2025 advising her of the re-scheduled hearing that would be conducted by videoconference.
On 8 January 2025, the Tribunal conducted a technology test with the applicant. The test was successful with the applicant connecting by videoconference to the Tribunal. SMS reminders about the hearing were sent to the applicant on 8 and 14 January 2025.
On 15 January 2025, the applicant appeared before the Tribunal by videoconference for the hearing. However, the applicant experienced numerous difficulties with her technology throughout the hearing. At first, the applicant appeared by video from her mobile phone, but when it overheated and shut down, she had to travel nearby to a friend’s residence to use their laptop. On a number of occasions throughout the hearing, the applicant was disconnected due to internet issues.
The Tribunal notes that it was open to it to once again adjourn the hearing given the above difficulties, however, it proceeded with the hearing and considers that it was fair to do so in the circumstances, given:
·The applicant assured the Tribunal that she was able to proceed with the hearing, notwithstanding the difficulties she was having with her technology;
·The applicant was able to sufficiently hear and respond to the Tribunal’s questions, which were being relayed with the assistance of an interpreter in the Malay and English languages with no apparent communication difficulties observed or raised;
·The hearing had already been adjourned on 2 January 2025 due to technology issues;
·The hearing could not proceed by alternative mode such as in-person attendance given the applicant’s remote location;
·The applicant advised that she would not be able to appear by telephone due to it overheating and shutting off.
At the conclusion of the hearing, the applicant was asked whether she would like to provide any further information to the Tribunal and she confirmed that she would not do so.
CLAIMS AND EVIDENCE
The Tribunal had before it various pieces of evidence, as set out below.
Protection visa application
In the protection visa application, the applicant advised, inter alia, that:
·She was born in Johor, Malaysia.
·Her ethnicity is Malay and her religious denomination is Islam.
·There were not any members of the same family unit included in the application.
·She has no family members in Australia or Malaysia and she was not in contact with any relatives outside Australia.
In response to the question about why the applicant left Malaysia, she responded:
I had to leave my country because I got lost in a business and the loan sharks to looking for me. My life was at risk and was threatened to be killed by the loan sharks . My huge amount of dept made me into depression and I tried to commit sucide. I seek for a protection here in Australia please. (sic)
The applicant advised that she had not experienced any harm in Malaysia and that she did not try to relocate to another part of the country because “The loan shark would be able to lactate me”. (sic)
When asked what the applicant thought would happen if she returned to Malaysia, she wrote, “I will be in depression and might be killed”. When asked whether the applicant thought the authorities in Malaysia could protect her, she responded “No” because “I had sign the loan agreement”. (sic)
At the outset of the hearing, the applicant confirmed that she did not receive assistance completing the protection visa application form and that the claims made in the form were true and correct.
Delegate’s decision
Based on country information, the delegate found in respect of the applicant’s loan shark and mental health claims that:
·There were effective protection measures available to the applicant in Malaysia and therefore she did not have a well-founded fear of persecution and did not meet the relevant refugee criteria.
·There was not a real risk of significant harm and therefore did not meet the complementary protection criteria.
·The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations as provided for in sections 36(2)(a) or 36(2)(aa) of the Act.
Pre-hearing information form
On 25 September 2024, the applicant completed the pre-hearing information form in which she stated:
I am [name] and a person A single mother would like to tell me why I am still in Australia...my husband and I are divorced and my ex-husband used to make unregistered unlicensed loans...and my ex-husband borrowed money and did not want to pay..and used my name as a borrower... my ex-husband has been looking for me since then until now... because my ex-husband is an addict and a beater my ex-husband has been in jail 3 times .. my ex-husband has beaten me ... and has tried to sell me to his friends and has try to kill me and threaten me if he finds me he will kill me...and I feel safer here....and I don't want to go back to Malaysia...and my child who is still in school still needs my help so I work here and help from a distance...I wish I could stay in Australia and not want to go back to Malaysia for a long time. (sic)
Other written evidence
As noted in the above background, on the day that the hearing was initially scheduled but did not go ahead on 2 January 2025, the applicant filed the following two statutory declarations, which were signed and sealed by a Commissioner for Oaths in Malaysia, who was located at Kajang, Selangor:
·Statutory declaration of [Neighbour A] dated 4 December 2024; and
·Statutory declaration of [Neighbour B] dated 2 December 2024.
Further analysis of this evidence is set out in the reasons below.
Tribunal hearing
As noted in the above background, the applicant attended the hearing on 15 January 2025 where she gave evidence and made submissions to the Tribunal.
At the commencement of the hearing, the Tribunal explained to the applicant the relevant criteria that had to be applied in considering her protection visa application. Various concerns that the Tribunal had with the application were put to the applicant for her comment towards the end of the hearing such as the lack of corroborating evidence and general vagueness and inconsistency about her claims.
The Tribunal asked numerous questions about each of the claims that the applicant was making and her reasons for fearing harm if she had to return to Malaysia. Some of the applicant’s responses to important questions were elicited at the beginning of the hearing and included:
·When specifically asked why the applicant left Malaysia in 2017, she referred to her husband being financially irresponsible and not providing for the family. The applicant stated that she came to Australia, because “Australia is a place that can provide protection and assistance to me so I could help my children”.
·When asked to elaborate on what she meant by ‘protection’ the applicant referred generally to Australia being “helpful”, and providing “supports” to people like her who are “lesbian and a single mother.”
·When asked why the applicant feared returning to Malaysia, she stated “Because I have lost interest in Malaysia, my heart is not with Malaysia anymore”.
·When asked who she thought would harm her in Malaysia, the applicant stated her “ex-husband”.
Where relevant, the applicant’s oral evidence with respect to her specific claims at the hearing is referred to in the Tribunal’s analysis below.
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.
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[2].
REASONS AND FINDINGS
[2] DFAT, Country Information Report: Malaysia (24 June 2024) (DFAT Report)
Receiving country
The applicant provided a copy of her Malaysian passport and national identity card to the Department. The delegate determined that the applicant had provided sufficient evidence of their identity. A further check of relevant systems revealed no information that raised concerns and so the delegate accepted the applicant’s identity as claimed.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country.
Therefore, based on the available evidence, the Tribunal is satisfied that:
·the applicant is a citizen of Malaysia;
·s 36(3) of the Act does not apply; and
·Malaysia is the receiving country.
The main issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
Does the applicant satisfy the refugee criterion for protection?
At the outset, the Tribunal notes that section 5AAA of the Act states that it is the responsibility of an applicant to specify all particulars of their claims. Further, although the concept of onus of proof is not appropriate to administrative inquiries and decision-making[3], it is for the applicant to provide evidence and argument sufficient to satisfy the decision maker of the relevant facts.[4] A decision-maker is not required to make the applicant's case for him/her.[5] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[6] These principles were applied when considering all of the applicant’s claims, each are which are set out and addressed under the below headings.
[3] McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; and Nagalingam v MILGEA (1992) 38 FCR 191
[4] MIMA v Lay Lat (2006) 151 FCR 214 at [76].
[5] Prasad v MIEA (1985) 6 FCR 155 at [33].
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451
Loan Shark
The applicant’s claims regarding “getting lost in a business” and being “threatened to be killed by the loan sharks” were made in the protection visa application lodged on 11 December 2019, some two and a half years after her arrival in Australia.
In the pre-hearing information form dated 25 September 2024, the applicant stated that:
“my husband and I are divorced and my ex-husband used to make unregistered unlicensed loans...and my ex-husband borrowed money and did not want to pay..and used my name as a borrower”.
The applicant went on to explain the risk of harm arising from her ex-husband, but made no further mention of the loans or any previous or possible future harm as a result of the loans in the pre-hearing information form.
The applicant has not provided any other written evidence with respect to the claims regarding owing money or the threats of harm by the loan sharks.
The Tribunal notes that when asked about her claims for protection at the hearing, the applicant did not raise or address her loan shark claims or even having a debt in Malaysia. Instead, the applicant stated other reasons for seeking protection in Australia, such as being a lesbian and needing to provide for her children back in Malaysia. It was only after being prompted by the Tribunal following an extended period of oral evidence about her other claims that the applicant sought to discuss her loan shark claims.
Following the Tribunal reading out what had been written in her protection visa application, the applicant advised that she was wanted by loan sharks. In response to numerous questions by the Tribunal, the applicant explained that:
·Her ex-husband had borrowed money from banks and unlicensed money lenders.
·She had signed loan agreements but did not understand what she had signed.
·She did not know any terms of the loans including the amount borrowed, interest rate or repayment schedule.
·She did not receive the loan funds, as her ex-husband took all of it.
·She did not have copies of any of the loan documentation, as it was lost when her house was destroyed in 2017.
·She had not made any repayments on the loans, but her ex-husband had made payments before he went to jail in 2017.
·She had been threatened with a knife by the loan sharks.
·She did not report the threats or her concerns to the police or authorities as she was worried about her children’s safety, but she reported the matter to the head of her village.
·The loan sharks have not pursued her since she came to Australia.
·The loan sharks have not sought repayment from the applicant’s family in Malaysia.
In consideration of the above evidence, the Tribunal concludes that the applicant’s loan shark claims are not credible. The Tribunal makes this credibility finding based on the following:
·The applicant did not raise her loan shark claims at the hearing until she was prompted by the Tribunal. The Tribunal considered this to be a significant omission or oversight given it formed the basis for her claims in 2019. The Tribunal considers that this indicates that harm by loan sharks was not at the forefront of the applicant’s mind when telling the Tribunal about her reasons for needing protection, given they were overlooked or forgotten.
·Even after the loan shark claim was raised as an issue at the hearing, the applicant was unable to provide sufficient details about the loans or the loan sharks. Furthermore, the applicant gave only scant details about the threats made by the loan sharks and the alleged harm. When the Tribunal’s concern about the lack of details was put to the applicant she simply asserted that the Tribunal could investigate the matter further.
·The applicant’s later claims about the loans are inconsistent from her original claims in 2019 insofar as they originally related to “getting lost in a business”, but are later referred to in the context of the loans being the result of her ex-husband using her name.
·The applicant’s responses in the protection visa application were inconsistent insofar as she stated that she was threatened to be killed, but that she had also not experienced any harm in Malaysia prior to departing.
Consequently, the Tribunal does not accept that:
·The applicant borrowed money from loan sharks.
·The applicant’s ex-husband borrowed money from loan sharks and used her name on the application.
·The applicant was threatened by loan sharks.
·The applicant will face harm by loan sharks if she returns to Malaysia.
It follows that with respect to the applicant’s loan sharks claims, the Tribunal is not satisfied that there is a real chance of harm if the applicant were returned Malaysia in the reasonably foreseeable future.
The applicant’s ex-husband
The applicant did not raise threats of violence or experiencing harm by her ex-husband in her 2019 protection visa application, noting only that her relationship status was “separated”.
The first time that violence by the ex-husband was raised by the applicant was in the pre-hearing information form dated 25 September 2024, which was approximately seven and a half years after her arrival in Australia, where she stated that:
…my husband and I are divorced and my ex-husband used to make unregistered unlicensed loans…and my ex-husband borrowed money and did not want to pay..and used my name as a borrower… my ex-husband has been looking for me since then until now…because my ex-husband is an addict and a beater my ex-husband has been in jail 3 times .. my ex-husband has beaten me … and has tried to sell me to his friends and has try to kill me and threaten me if he finds me he will kill me.” (sic)
At the hearing, the applicant stated that her fear of returning to Malaysia was in relation to her ex-husband and that this was due to him wanting to hurt her because she is a lesbian. The applicant stated that her ex-husband told her he would not forgive her for being a lesbian and she was afraid that he was still trying to locate her.
The applicant also stated that she had not had contact with her ex-husband for a long time and could not remember the last time she had contact. She stated that the ex-husband seldomly has contact with her children, who are cared for by the applicant’s mother.
The applicant was asked to explain how the ex-husband would find her if she relocated within Malaysia, noting she had stated that there had been no contact with him or her family for over seven years. The applicant stated that the ex-husband would ask his friends or talk to her children in order to find her.
Pursuant to section 367A of the Act, the Tribunal explained to the applicant that:
·her initial protection visa application in 2019 made no mention of coming to Australia due to the threat of violence by her husband;
·the claim regarding her ex-husband was raised for the first time in September 2024;
·the Tribunal may draw an inference unfavourable to the credibility of the claim if it is not satisfied that the applicant had a reasonable explanation why the claim was not raised at the time of the protection visa application.
When given the opportunity to explain why she did not raise this claim when completing the application for a protection visa in 2019, the applicant stated that she had asked her friends about what to write and they had told her not to include too many reasons in the application. The Tribunal notes that this conflicted with the applicant’s evidence that she had completed her protection visa application without assistance and that the claims were true and correct.
In consideration of the above evidence, the Tribunal concludes that the applicant’s claims regarding her ex-husband are not credible. The Tribunal makes this credibility finding based on the following:
·The applicant did not raise the threat of violence by her ex-husband at the time she made her application for a protection visa. The Tribunal notes that the applicant gave inconsistent evidence about completing her protection visa application herself and that the claims made in that application were true and correct. And yet when presented with the issue at the hearing she sought to explain this by stating that she took the advice of friends. The Tribunal does not consider the explanation given by the applicant to be reasonable. Therefore, the Tribunal draws an unfavourable inference about the credibility of the claim pursuant to section 367A of the Act.
·The applicant’s evidence about the threat posed by her husband was also inconsistent and lacking detail. For example, the applicant indicated in her pre-hearing information form that her ex-husband has been looking for her in relation to the loan shark issues. The applicant’s evidence in the early stages of the hearing was that she left Malaysia because her husband was financially irresponsible and not providing for the family. However, later in the hearing the applicant stated that the ex-husband wanted to harm her in relation to her becoming a lesbian. The applicant also stated that she had not had contact with her ex-husband for many years and that he has not been in contact with her family and yet she feared being harmed by him if she returned to Malaysia.
·The applicant has not provided any corroborating evidence regarding the threats made or violence committed by her ex-husband while in Malaysia.
Given the above, the Tribunal accepts that the applicant was once married, as there was some consistency in this aspect of the evidence. However, the Tribunal does not accept that:
·The applicant’s ex-husband committed any acts of violence towards her.
·The applicant’s ex-husband is looking for her since she left Malaysia in 2017.
·The applicant’s ex-husband will harm her if she returns to Malaysia.
It follows that with respect to the applicant’s claims related to her ex-husband, the Tribunal is not satisfied that there is a real chance of harm if the applicant were returned Malaysia in the reasonably foreseeable future.
Sexuality claims
The applicant did not raise as a claim that she was a lesbian in her 2019 protection visa application. The applicant did not raise as a claim that she was a lesbian in in the pre-hearing information form dated 25 September 2024 where she made other new claims regarding her ex-husband.
It was only after the hearing was cancelled on 2 January 2025 due to the applicant’s non-appearance that she filed with the Tribunal two statutory declarations which raise the issue of her being a lesbian.
In [Neighbour A’s] statutory declaration dated 4 December 2024, they stated nothing other than “[the applicant] is someone who performs the activities of lesbian”.
In [Neighbour B’s] statutory declaration dated 2 December, they stated nothing other than “[the applicant] is a lesbian that I have known her for 15 years old (neighbour)”. (sic)
At the hearing, the applicant stated that:
·Her ex-husband divorced her because he “knew that I loved another girl”.
·She did not have any problems with authorities or her family regarding being a lesbian when she lived there, including when she had allegedly had a girlfriend.
·If her mother found out that she was a lesbian she would be very disappointed.
·Malaysia is “against lesbians”.
·Her religion is Islam and this means she cannot live as a lesbian in Malaysia.
·She had a relationship with a female named ‘[name]’ who had returned to Malaysia.
The Tribunal asked the applicant to further elaborate on her claims that she was a lesbian and why she feared returning to Malaysia for that reason. The applicant stated that her main concern was that her mother would find out and that if she did “she would die”, as her mother could not face anything that would surprise or shock her. She also stated that she did not want her children to know she was a lesbian.
The applicant was asked to explain who had provided the statutory declarations and how she had come to obtain them. The applicant’s explanation was vague and difficult to follow. In short, the applicant indicated that she has remained in contact with [Neighbour A], who was a neighbour in Malaysia.
The applicant stated that she had not spoken with or remained in any contact with [Neighbour B variant], who provided the statutory declaration after being asked by [Neighbour A] to do so. That applicant suggested that each of these persons knew that she was a lesbian, when she resided in Malaysia. However, they were not in a relationship with the applicant.
Pursuant to section 367A of the Act, the Tribunal explained to the applicant that:
·her initial protection visa application in 2019 made no mention of coming to Australia due to the threat of harm related to being a lesbian;
·the claim regarding being a lesbian was raised for the first time on 2 January 2025;
·the Tribunal may draw an inference unfavourable to the credibility of the claim if it is satisfied that the applicant does not have a reasonable explanation why the claim was not raised at the time of the protection visa application.
When given the opportunity to explain why she did not raise this claim when completing the application for a protection visa in 2019, the applicant essentially stated she had always been a lesbian but did not know that being a lesbian could be raised as a claim.
In consideration of the above evidence, the Tribunal concludes that the applicant’s claims regarding her being a lesbian are not credible. The Tribunal makes this credibility finding based on the following:
·The applicant did not claim that she was a lesbian as a reason for leaving Malaysia or seeking protection in Australia when she made her application for a protection visa. The applicant sought to explain this by stating that she did not know this was a claim that could be pursued in seeking protection. The Tribunal does not consider the explanation given by the applicant to be reasonable. Therefore, the Tribunal draws an unfavourable inference about the credibility of the claim pursuant to section 367A of the Act.
·The applicant conceded that the late claims were essentially a matter of convenience after being told some seven years after arriving in Australia that a claim of being a ‘lesbian’ could be made. The Tribunal infers that this was not a reason that the applicant departed Malaysia in 2017 and is not satisfied that it is a genuine reason for fearing return.
·The applicant’s written evidence in the form of the two statutory declarations are given minimal weight by the Tribunal. They are allegedly provided by two former neighbours/friends, at least one of which has not spoken with the applicant since she departed Malaysia in 2017. The Tribunal does not find these two witnesses to be in any way compelling when it comes to corroborating the applicant’s sexuality claims, noting their largely unexplained knowledge about these personal matters and the scarcity of evidence given in the declarations. In summary, the declarations are no more than a brief, unexplained assertion given by witnesses whose relationship and personal knowledge of these matters appears tenuous and remote.
·The applicant’s evidence at the hearing was similarly brief, vague and unconvincing. Despite prompts, she gave little detail about previous relationships, how and when she came to realise she was a lesbian, how her sexuality seemingly conflicted with being married and having [number] children, and the conflict of being a lesbian and a Muslim. She gave limited details about her experiences both in Malaysia and in Australia, referring vaguely to being disappointed with her previous relationship with a male and later developing a relationship with a female in Australia, who has since returned to Malaysia.
Given the above findings, the Tribunal does not accept that the applicant is a lesbian. It follows that with respect to the applicant’s lesbian claims, the Tribunal is not satisfied that there is a real chance of harm if the applicant were returned Malaysia in the reasonably foreseeable future.
Mental health
In the protection visa application, the applicant stated that her huge amount of debt caused her to feel depressed and she tried to commit suicide.
At the hearing, the applicant stated that she had tried to commit suicide by consuming poison. The applicant stated that she was taken to hospital, but gave no further information about the matter. She was not on any regular treatment for her mental health while in Malaysia. The applicant indicated that her departure from Malaysia resulted in her removal from the stressors that were causing her mental health problems and therefore since she had been in Australia her mental health had not been a problem.
The applicant stated that she is not on any regular treatment or medication and did not presently have any mental health concerns. She did not think her mental health would be an issue if she continued to live in Australia where it is “peaceful”. The applicant did not believe she would be able to access mental health services in Malaysia if she returned there and required treatment in the future.
The Tribunal notes that, as per the above findings, it does not accept that the applicant has debts that are owed to loan sharks. It follows that the Tribunal does not accept the applicant’s claims about mental illness arising out of debts owed to loan sharks. Despite this finding, the Tribunal still considered the applicant’s alleged mental illness as a claim.
Noting that the applicant has not produced any corroborating evidence such as a medical report or witness account about her mental health issues while in Malaysia, the Tribunal finds that the claims are not credible. Therefore, the Tribunal finds that:
·The applicant did not suffer depression or any other mental health condition to the extent that it required treatment and resulted in an attempted suicide while in Malaysia.
·The applicant has not had any significant mental health issues while living in Australia, such that she would require treatment and care e.g. hospitalisation or ongoing medication.
Accordingly, the Tribunal is not satisfied that there is a real chance of harm due to mental illness if the applicant were returned Malaysia in the reasonably foreseeable future.
Economic reasons
The applicant did not make a claim in her protection visa application regarding her economic reasons for coming to Australia, except in the way that she articulated a claim in relation to a debt and loans sharks (addressed above).
In the pre-hearing information form, the applicant stated that “I am a single mother…my child who is still in school still needs my help so I work here and help from a distance”.
When asked by the Tribunal at the hearing why the applicant came to Australia, she stated “Because my ex-husband was very irresponsible and he did not provide for the family and children and we needed to beg… I worked very hard day and night to pay the house rent and support children but even then it was not enough. Then we divorced and I came to Australia.”
During the hearing, the applicant stated that she had worked on various farms in Australia for the majority of time she had been in Australia. The applicant stated that she sends money to her mother in Malaysia, who is looking after her children. The applicant stated that her mother also receives some form of government allowance. The applicant stated in her protection visa application and at the hearing that when she lived in Malaysia she sold food as a form of financial support.
While not articulating a specific claim, the Tribunal understands the applicant to be making a claim about the general financial difficulty that she had experienced when living in Malaysia and that she would experience again if she had to return to Malaysia.
Although not claimed in the protection visa application, there was some consistency to the applicant’s claims about her financial circumstances including the financial burden of supporting her family as a single mother, and desire to remain working in Australia in order to do so. Therefore, the Tribunal accepts that:
·The applicant is a single mother who travelled to Australia seeking to better financially support her family.
·The applicant sold food as a form of financial support when she lived in Malaysia.
·The applicant has been employed for the majority of her time in Australia, primarily in manual labour jobs like farming.
·The applicant sends money back to Malaysia in order to support her children.
·The applicant is supported primarily by her own mother in raising and providing for her children who are still in Malaysia.
The Tribunal notes that country information provides that:
Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Households living below the national poverty line of MYR 2,589 (AUD 864) fell from over 50 per cent in the 1960s, to less than less than 6.2 per cent in 2022. Persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population (known as the ‘B40’) who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states.
The COVID-19 pandemic had a major economic impact on Malaysia, particularly on the most vulnerable. Poverty rates rose and growth fell due to the COVID-19 pandemic in 2020 and 2021, although the economy has since recovered. Ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt.
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In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic.
Discrimination against women is banned under the Constitution. Nevertheless, discrimination on the basis of sex, and inequality, persist for women and girls in Malaysia. Although women participate widely across various aspects of Malaysian society, some conservative cultural and religious practices continue to limit their choices. According to the World Bank, female labour force participation rate was 53 per cent in 2022, up from 43 per cent in 2008. In-country sources told DFAT that despite legal protections, women sometimes received less pay than men for equal work.[7]
[7] DFAT report, pg 30
The Tribunal accepts that as a single mother, there is a real chance that the applicant will experience economic challenges and hardship if she returns to Malaysia in the reasonably foreseeable future. However, the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm in the reasonably foreseeable future. The Tribunal notes that section 5J(5) of the Act includes examples of serious harm and includes “significant economic hardship that threatens the person’s capacity to subsist”. The Tribunal notes that a threat to subsistence must be at a level that challenges the ability of the individual to continue to exist or remain in being.[8]
[8] SZBQ v MIAC [2005] FCA 143
The Tribunal is not satisfied that the economic claims amount to serious harm in the reasonably foreseeable future based on the above country information, which supports that although there are economic challenges, unemployment rate fell in 2023 and Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. The Tribunal also notes that the applicant has family support and has demonstrated an ability to work both in Malaysia and Australia.
Given the above findings about each of the applicant’s claims, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that she has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of her membership of a particular social group if she returns to Malaysia in the reasonably foreseeable future.
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a), the Tribunal considered the alternative criterion in section 36(2)(aa). The Tribunal notes that in order to meet the criteria for complementary protection, there must be a real risk of significant harm as a necessary and foreseeable consequence of returning to Malaysia.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’[9].
[9] MIAC v SZQRB (2013) 210 FCR 505
With respect to most of the applicant’s claims set out above (except for the economic claim), the Tribunal concluded that it is not satisfied that there is a real chance of harm. Therefore, the Tribunal also concludes that with respect to each of the applicant’s claims (except for the economic claim), there is no real risk of significant harm in the reasonably foreseeable future.
With respect to the economic claim, consistent with the above, the Tribunal concludes that there is a real risk that the applicant will experience economic challenges and hardship if the she returns to Malaysia. However, the Tribunal considers that this hardship does not amount to significant harm within the meaning of the exhaustive list contained in s 36(2A) of the Act.
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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