2013944 (Refugee)

2013944 (Refugee) [2024] AATA 4309 (12 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013944
COUNTRY OF REFERENCE:                   Singapore
MEMBER:Andrew Verduci
DATE:12 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 September 2024 at 1:37pm

CATCHWORDS
REFUGEE – protection visa – Singapore – particular social group – women – victim of loan sharks – family violence – threats from criminal gangs – physical assault – property dispute – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant is [an age]-year-old female citizen of Singapore.
She legally departed Singapore and arrived in Australia in September 2018. She lodged a combined application for a Protection visa with her youngest son. Her son returned to Singapore in April 2019 and appears to have withdrawn his visa application before it was decided.
The applicant was refused a Protection visa by a delegate of the Minister for Home Affairs on 11 September 2020 under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate’s decision does not include the applicant’s son.
This is a review in relation to the decision refusing to grant the applicant a Protection visa.
Protection visa application
The applicant applied for a Protection visa on 10 December 2018. According to the information in her written application:
·She was born in [Malaysia]. Her parents and [specified family members] are deceased. A brother and a sister live in Malaysia.
·She started a relationship with a man named [Husband A] in April 1997. They married in January 1998 and divorced in December 2013. [Husband A] is a Malaysian citizen who lives in Malaysia.
·She travelled internationally between 2014 to 2018 for short periods to [specified countries].
·She lived in Malaysia between 1998 to 2007. She lived in Singapore between 2007 to 2018.
·She was educated and has worked in a number of different roles in both Malaysia and Singapore.
In summary, she says that she left Singapore because:
·She faced prolonged physical and mental torture and abuse from her ex-husband. She has been hit and slapped by him many times and still has the scars. He keeps bad company and is involved with gangsters and has gambling debts.
·She has left him before and has reported him to the police in Malaysia. He once found out that she had returned to her parents house and he climbed over their front gate with a knife looking for her.
·They separated in 2007 and she moved to Singapore with their two children. He found them living in Singapore in 2017 and threatened the applicant if she did not sign property transfer documents. She reported this to the police in Singapore.
·She started receiving calls from an unknown telephone number in 2017. She found out that he had borrowed money from illegal lenders and given her, and their two sons, as a guarantor.
·Her ex-husband came to her workplace in Singapore in 2018 but she was not there.
·Her ex-husband approached her at an immigration checkpoint in Singapore in September 2018.
·She fears returning to Singapore because her ex-husband will hurt, threaten, kidnap or kill her and/or her two sons because he is desperate for her to transfer property into his name. She fears he may still harm them even if she does do this.
The applicant attended an interview with the delegate on 21 August 2020 and provided further evidence in support of her claim. According to the record of this interview contained in the delegate’s decision:
·The applicant, her ex-husband and their children obtained permanent residency as a family in Singapore in 2003.
·She has been pursued by her ex-husband in relation to two property matters.
·Her last contact with her ex-husband was about one to two weeks before she departed Singapore in September 2018. The applicant and her two sons have not heard from the individuals who were contacting them in relation to her ex-husband’s debts or loans since 2018.
The delegate was not satisfied that the applicant faced a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Singapore, there is a real risk that the applicant will suffer significant harm.
Application for review
The applicant applied for a review of the delegate’s decision with this Tribunal on 14 September 2020. It is regrettable that her application for review was only constituted to me in August 2024 and that she has waited so long for her application to be considered.
The applicant has been engaged throughout the review process and has continually given written material in support of her application. She has provided her own written statements as well as written character and employment references. She has also provided letters from doctors, psychologists and counsellors which speak to her mental health, in particular as a survivor of family violence at the hands of two different partners and also because she is separated from her two children.
The written material also includes a copy of a Final Order Apprehended Domestic Violence Order made in [Court 1], Australia [in] December 2021 against the applicant’s former Australian partner.
Tribunal hearing
The applicant appeared before me in person on 9 September 2024 to give evidence and present arguments. We were assisted by an interpreter in the Tamil (Malaysian) and English languages.
Her oral evidence to me during the hearing is largely consistent with her evidence to the Department and the written material that she given in support of her application.
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 (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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
I am satisfied about the applicant’s identify. I am also satisfied that she is a citizen of Singapore only, having renounced her Malaysian citizenship in 2007. Singapore is therefore her receiving country for the purposes of s 36(2) of the Act.
I generally accept the applicant’s evidence about her ex-husband and his treatment towards her and their two children.
I accept that:
·She started a relationship with [Husband A] in Malaysia in 1997 and was married in January 1998. They have two children together who are now [respective] years of age.
·[Husband A] has a history of being abusive towards the applicant and their children. She has been threatened, assaulted and emotionally abused. He burnt one child with a hot metal spoon when the child was about [age] years old and he has been threatening and violent towards the applicant on multiple occasions.
·The applicant separated from [Husband A] in 2007 and moved to Singapore with their two children.
·The applicant initiated legal proceedings to divorce [Husband A] in, or around, 2007 whilst living in Singapore. The legal system and her reliance on legal aid delayed her divorce being processed for a number of years. She attended one legal aid session with [Husband A] and he was very aggressive towards her. He did not want to get divorced or lose access to his children.
·The applicant’s divorce was finalised in 2013. They were both granted joint custody of their two children, who were minors at the time, with care and control of the children granted to the applicant and reasonable access granted to [Husband A]. [Husband A] was ordered to provide the applicant with maintenance of $300.00 per month. The applicant has allowed access to their children but is no indication that he pays or paid any money to her.
·[Husband A] met the applicant at an immigration checkpoint in Singapore in 2018. He threatened and abused her because she had reported him to the police for an earlier incident.
I also accept that the applicant has experienced family violence in Australia, and that her history of experiencing family violence from different partners has had a negative effect on her physical and mental health.
However, I do not accept that the applicant faces a real chance of serious harm, or a real risk of significant harm, from [Husband A], debt collects, money lenders/loan sharks or anyone else in Singapore.
[Husband A] is a Malaysian citizen, although I am prepared to accept that he was granted permanent residency in Singapore in 2003 as part of their family unit. The applicant is unaware where he lives now although she believes that he still lives in Malaysia. I accept that [Husband A] will have easy access to enter Singapore, but I also place some weight upon him being a Malaysian citizen who is believed to be living in Malaysia.
Despite being in Australia and applying for a Protection visa because he feared harm from [Husband A], the applicant’s youngest son voluntarily returned to Singapore in 2019. I accept that her son may have found it difficult being in Australia at the time, but I place some weight on the fact that he voluntarily returned to Singapore and is now living in an apartment together with the applicant’s other son. I also place some weight on this apartment being owned by the applicant and being the same apartment where she previously lived.
Whilst it is reasonable that a child may continue to have contact with their father even if that father has been abusive to them and/or other members of their family, I also place some weight on the applicant’s evidence that one of her children has continued to have contact with [Husband A] by telephone, at least until a couple of months ago.
The property dispute raised by the applicant relates to a parcel of land in the applicant’s family. After a number of her family members have passed away, the land is now in the control of her sister-in-law. It is a long time since [Husband A] has said or done anything to try and get this land passed to him.
The property investment that the applicant made together with [Husband A] relates to when they were still living together and in a relationship. I am prepared to accept that they both contributed to a deposit in 2006 or 2007 which was subsequently lost after they separated and did not complete the purchase. According to the applicant’s evidence to me, the last contact she had with [Husband A] about this was in, or around, 2008. He has not taken any steps to try and reclaim his share of the deposit since then.
The applicant also claims to know very little about [Husband A’s] debts and why they might affect her. I accept that she was contacted by a bank enquiring about [Husband A] in 2002 but then nothing happened after that.
I also accept that a private loan shark visited their home when they were living together in Kuala Lumpur in Malaysia and other loan sharks came looking for [Husband A] when they were living together in Johor Bahru, Malaysia, but this was before she separated from [Husband A] in 2007 and moved to Singapore. Even if I am prepared to accept that the applicant and her children received telephone calls about [Husband A’s] debts in 2018, I place some weight on there being no contact with loan sharks or money lenders after this time, despite the applicant’s children continuing to live in the same family apartment and have ongoing contact with their father.
After their divorce in 2013, the applicant continued to have some contact with [Husband A]. She would meet him in public places, such as shopping malls, when arranging for [Husband A] to spend some time with their children.
The applicant’s last contact with [Husband A] was shortly before she left Singapore in 2018. I accept that there was an incident at an Immigration checkpoint where he was physical and threatening towards her. However, I place some weight upon her reporting this matter to a police officer, who then spoke to both of them, but she declined his offer to take any further action.
I also discussed country information regarding the treatment of women in Singapore, suggesting that Singapore takes steps to protect women in general and to address family violence in particular. For example, one source reports that: [1]
·In 2020, Singapore launched the Conversations on Singapore Women’s Development, a national conversation serious to gather feedback from thousands of Singaporeans on issues concerning women at home, at work, in schools, and in the community. The Conversations will culminate in a White Paper to be submitted to Parliament in 2021, with recommendations and a roadmap to further advance women’s protection, interests, and development in Singapore.
·Singapore has robust legislation criminalising violence under the Women’s Charter, the CYPA, the Protection from Harassment Act and the Penal Code. With effect from January 2020, Singapore fully repealed marital immunity for rape and expanded the definition of rape. It also enhanced penalties for a range of offences committed against persons vulnerable to harm, including children, domestic helpers, persons in intimate relationships with offenders, and persons with disabilities whose mental or physical disabilities render them substantially unable to protect themselves from abuse. To promote aware and encourage discussion on family violence, the Break the Silence campaign was launched in 2016.
·Singapore recognises that laws alone cannot resolve the multifaceted issue of family violence. The Taskforce on Family Violence was set up in February 2020, to bring together members from the Government, the Courts, and partners such as hospitals, family violence specialist centres, crisis shelters and family service centres, to put forth recommendations on tackling family violence.
[1] National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, dated 11 February 2021; Human Rights Council Working Group on the Universal Periodic Review, United Nations General Assembly (>
According to another source:[2]
·Under Singaporean law, rape is a crime with maximum penalties of 20 years; imprisonment and possible canning. There is no marital immunity for rape and the definition of rape is gender neutral. The law imposes up to twice the maximum penalty for offences affecting the human body – ‘rape, hurt or wrongful confinement’ – committed by partners in a close or intimate relationship than is imposed for the same offences committed outside of a relationship.
·Acts of domestic violence are crimes, and penalties range from fines to sentences of up to 24 years’ imprisonment. Survivors could also obtain court orders restraining the respondent and barring a spouse or former spouse from the survivor’s home until the court was satisfied the spouse had ceased aggressive behaviour. The government effectively enforces the laws on rape and domestic violence.
·In July 2023, Parliament amended the Women’s Charter to strengthen protection for survivors of domestic violence. The bill updated the definition of domestic violence to include emotional and psychological abuse, such as coercive control, besides physical and sexual abuse. It introduced two new types of protection orders which prohibited a perpetrator from being in the vicinity of or communicating with the survivor. It also strengthened the government’s ability to intervene and protect survivors through so called ‘protectors’. The law increased fines for family violence-related offenses and increased the maximum prison term.
·Police launched a new Sexual Crime and Family Violence Command after a five year high of sexual assault cases were reported in 2022.
·Women enjoy the same legal rights as men in civil liberties, employment, commercial activity, and education. Women are well represented in many professions and the constitution provided for equality in employment, but women face discrimination in the workplace. No specific antidiscrimination legislation exists, although statutes prohibited certain forms of discrimination and guidelines for employers prohibited asking about marital status or family responsibilities during job interviews. The government effectively enforces these statutes and investigates complaints of workplace discrimination.
[2] 2023 Country Report on Human Rights Practices: Singapore, 23 April 2024; United States Department of State (>
This country information is consistent with the applicant’s own lived experiences in Singapore, including her interaction with a police officer at the immigration checkpoint who offered her further assistance which she declined. The applicant agrees that Singapore has a police force that will act on a complaint if she makes one.
I find that the applicant will return to the apartment block that she owns in Singapore. Her two adult children already live there. Her eldest son is [working]. Her youngest son is studying [and] also [works]. The applicant has her own extensive education and employment history that will allow her to find employment. It may be made more difficult because of her past trauma and the effect of that trauma on her physical and mental health, but she will also have the support of two adult children and accommodation that she already owns.
Weighing up all of the considerations above, I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future from [Husband A], debt collectors, money lenders/loan sharks, or anyone else.
It is deeply regrettable that the applicant has experienced further family violence in Australia. However, she has had no contact with her former spouse in Australia since the protection order was granted to her in December 2021, which I also note expired in December 2023. There is no claim or evidence to suggest that she fears her former Australian partner following her to Singapore, and I find that he will not. She does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future, from her former partner in Australia.
Conclusion
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
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, and I find that she does not.

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.
Andrew Verduci
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.
…

[2024] AATA 4309

12 September 2024

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