2118523 (Refugee)

2118523 (Refugee) [2024] AATA 4402 (20 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Ehsan Azadi (MARN: 1279450)
CASE NUMBER: 2118523

COUNTRY OF REFERENCE: Madagascar
MEMBER:Mia Bailey
DATE:20 September 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2024 at 3:13pm
CATCHWORDS
REFUGEE – protection visa – Madagascar – political opinion – Young TIM Party – particular social group – women without male protection – gender-based violence – corruption – attack on demonstrators – threatening messages – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan Yee Kin v MIEA [1989] HCA 62
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 3 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 16 June 2016. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.
The applicant was represented in relation to the review. She appeared before the Tribunal, with her representative, on 13 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
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 (Department), 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
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act.
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, I have concluded that the decision under review should be affirmed.
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
Background and receiving country
The applicant, [an age]-year-old female, arrived in Australia [in] October 2015 as the holder of a Visitor (FA-600) visa.
The applicant provided a certified copy of her Madagascar passport to the Department in support of her protection visa application. Based on the available evidence, I find that the applicant is a citizen of Madagascar, and that Madagascar is her receiving country for the purposes of assessing her claims for protection.
Evidence before the delegate
According to her protection visa application, the applicant was born and resided in Antananarivo. Her ethnicity is African, and religion is Christian. She completed high school in [specified year] and worked as an [occupation] (dates not specified). She has never married. Her parents and [siblings] reside in Madagascar.
Regarding travel to any other countries, she stated that she travelled to [Country 1] for a ‘family visit’ [in] October 2015. This is consistent with immigration stamps in her passport showing her arrival in and departure from [Country 1].
Regarding her claims for protection, she stated that she left Madagascar because she had been ‘terrorised, threatened and treated badly’ due to expressing her opinion as part of a political group called ‘Young TIM’ in Antananarivo. One day they had a peaceful meeting to express their views about government corruption and the illegal exportation of natural resources. The government threw grenades and beat them with electric sticks. Many members of the group were jailed. Most of the group were threatened by phone that if they don’t quit the group, their family and friends will be killed. If she returns to Madagascar, she thinks that she and her family will be captured, jailed, tortured or killed.
The applicant was invited to attend an interview with the Department on 26 November 2021. As recorded in the delegate’s refusal decision, she did not attend the interview or provide any reason for her non-attendance.
Based on the available information, the delegate accepted that the applicant was a low-level supporter in a youth capacity of the opposition Tiako I Madagasikara (I Love Madagascar) or ‘TIM’ party. Having regard to country information, and the lack of any supporting evidence, the delegate found that as a low-level political supporter or protester, there was not a real chance that she would be persecuted for reasons of her political opinion. For the same reasons, the delegate found there to be no real risk of significant harm as a necessary and foreseeable consequence of her return to Madagascar.
Evidence before the Tribunal
Pre-hearing evidence
Prior to the Tribunal hearing the following additional evidence was submitted, together with a copy of the applicant’s expired Madagascar passport and Queensland Driver Licence:[2]
Submissions from representative (Pre-hearing submission)
[2] The same documents were submitted to the Tribunal on 1 August 2024 and 2 September 2024
The Pre-hearing submission summarises the relevant criteria for grant of a protection visa and the applicant’s claims as outlined in her statement to the Tribunal. Reference is made to country information regarding the TIM and its President, Marc Ravalomanana.
It is submitted that the applicant has previously experienced harm in Madagascar for reasons of her political opinion and her membership of the particular social group, ‘Women without male protection in Madagascar’ and would be subject to harm for these reasons if she were to return.
Reference is made to country information regarding the prevalence of gender-based and sexual violence in Madagascar and gender-based wage disparity. The COVID pandemic has led to a deterioration in food security and economic conditions in Madagascar, where a majority of the population live in extreme poverty.
Applicant’s statement dated 1 August 2024 (Tribunal statement)
The applicant states in summary that:
i.Throughout her life she has been outspoken about her political opinions. At a young age she joined the youth branch of political group TIM, known as ‘Young TIM’.
ii.While she appreciated the opportunity to express her political opinions and understand the views of other group members, joining Young TIM put a ‘target on [her] back for political persecution’ from the government.
iii.During one TIM meeting that she attended in 2014, the group members were peacefully expressing their opinions on the illegal export of resources and associated corruption. Suddenly they were ambushed with grenades and beaten with electronic batons. Many members of the group were forcefully arrested and jailed.
iv.Those who escaped later received death threats over the phone and were warned that if they did not leave TIM, their family and friends would be harmed and killed. This left her deeply concerned for her life and that of her loved ones.
v.This disturbing situation led her to leave Madagascar in fear for her life. She had been terrorised, threatened and treated inhumanely for peacefully expressing her political opinion.
vi.If she returns to Madagascar, she will be denied her basic human rights, arbitrarily detained, falsely imprisoned, beaten, tortured, and possibly even killed. She cannot change her political opinion or the political situation in her country and will not tolerate injustice.
vii.As the government is the perpetrator of harm, she could not obtain protection from the authorities or relocate within Madagascar to avoid harm.
Support letter dated [in] July 2024 from TIM Youth Group [Official 1] (TIM support letter)
The letter bears the TIM logo and is stated to be from the [Official 1] of the youth group, [specified] district of Antananarivo. The author states that the applicant is an ‘active member of our organization’ and attests that she was forced to leave Madagascar due to ‘political persecution as an opponent of the current regime.’
The author states that arbitrary arrests and illegal detentions of political opponents are common in Madagascar and the political situation remains unstable and unpredictable, such that the applicant cannot safely return. The risk of further arrests and reprisals pose a constant threat to her safety. Reference is also made to the high poverty rate and limited employment opportunities in Madagascar.
Oral evidence at hearing
Regarding the preparation of her protection visa application, the applicant stated that her aunt – with whom she was residing at the time – assisted her to write the application as her English was limited. She understood and agreed with the content of the application. Asked why she did not attend the protection visa interview with the Department, she stated that she changed her address and did not receive the invitation as it was sent to her aunt’s residence.
She confirmed that she was born in [Town 1] and moved with her family to the capital of Antananarivo, where her father’s family resided, when she was about [age] years old. While in Madagascar, she always lived with her parents. Her parents continue to reside in Antananarivo but in a different house to where she lived. She indicated that they have changed residence several times following her arrival in Australia.
Her father previously worked as [an occupation 1] for a [business 1] but is currently not working because he is depressed. Her mother is currently not working but previously worked for [an agency]. She maintains regular contact with her parents via [a messaging service]. [One] brother passed away earlier this year due to [a medical condition]. [One] sister is engaged and lives with her fiancé and their baby. She has an aunt living in Australia and extended family living in [Country 1] and [Country 2]. She is currently engaged to an Australian citizen.
She confirmed that she completed high school in [year], when she was [age] years old. She subsequently attended a private university to study [subject 1] for about one year but withdrew because the fees were expensive. She worked for about one year, up until her departure from Madagascar, in [a specified] role at [business 1] where her father was employed.
Asked about her travel to [Country 1] [in] October 2015, she stated that she travelled with her aunt and stayed with family. Her parents advised her to leave Madagascar because of the problems she was experiencing in connection with her TIM involvement. At that time, she had no definite plan not to return to Madagascar. She travelled from [Country 1] to Australia and did not return to Madagascar. She confirmed that she arrived in Australia [in] October 2015 on a Visitor visa with 6-months validity.
Regarding her involvement with the TIM, she stated that she became involved with the group in 2013, when she was [age] years old, as her parents and friends were involved. She confirmed that her [siblings] had no involvement with the TIM. Asked about the nature of her involvement with the TIM, she stated that she attended weekly meetings – sometimes with her parents – at which there were between 50 and 100 people in attendance.
Regarding the meeting in 2014 referenced in her Tribunal statement, she stated that she can’t recall the exact month but believes it was in the second half of 2014, around September. She estimated that around 300 TIM supporters were in attendance; her parents did not attend this meeting. As they usually did, the group initially met inside a building and then went onto the street to march or protest. They were attacked by the authorities while on the street. Many members of the group were arrested and jailed but she managed to escape.
Asked what happened after this incident, she stated that this was when the harassment started. While walking through an alleyway on her way home from the protest, some men followed her and threw a rock at her. They did not speak to her, but she thinks this was connected to her involvement with TIM because she then started receiving threatening phone calls on her mobile phone. Asked how long the calls continued for, she initially responded, ‘more than one month’ and subsequently stated that they continued until her departure from Madagascar in October 2015. She described the calls as being ‘non-stop’ and received at various hours of the day and night. Eventually her father told her to destroy her SIM card.
Asked whether anything further occurred, she stated that it didn’t because she barely left the house and ceased her involvement with the TIM. When I raised with the applicant that she had earlier stated that she was working at a [business 1] in the year preceding her departure from Madagascar, she responded that she was mostly working from home.
She confirmed that prior to the incident in late 2014, she had not experienced any problems due to her involvement with the TIM. Asked whether she experienced any problems in obtaining her passport, issued in [2015], or while departing the airport in Madagascar in October 2015, she stated no but suggested this may be because her [Relative A] worked at the passport office.
Asked about her parents’ involvement with the TIM, she stated that they were involved with the TIM from 2008, particularly following the political crisis in 2009. They continued their involvement following the incident in 2014 but to a lesser extent. Following her departure from Madagascar, they ceased their involvement with the TIM. Asked whether her parents had experienced any problems because of their involvement with the TIM, she referred to them frequently changing church groups and her mother losing her job with [an agency] following a change in government. When asked if they experienced any problems following her departure for Australia, she responded that she suspects that something has occurred because of the number of times they have moved house but thinks they don’t tell her everything.
Asked why she would be of adverse interest to the Madagascar authorities due to her relatively low-level involvement with the TIM 10 years ago, she responded that she wished to return to Madagascar earlier this year for her brother’s funeral but her mother told her it was not safe.
I discussed with the applicant that her parents – who appear to have had a more significant level of TIM involvement than her – have remained in Madagascar and not been harmed by the authorities. She stated that her parents have ‘paid a heavy price’ for their involvement with the TIM, which she detailed as her father becoming an alcoholic and not being able to find work; her mother developing a [medical condition]; her parents largely remaining in the house and being ‘alive but dead’.
Asked whether her parents have ever been arrested, she stated that her father was arrested in 2018 and spent 2 years in jail despite not being charged with any offence. He was never told of the reason for his arrest and imprisonment, but he told her it was because of his involvement with the TIM. When I raised with the applicant that she had previously stated that her parents ceased their involvement with the TIM following her departure from Madagascar, she agreed but stated that it still happened.
I raised with the applicant that she had made no previous mention of her father’s arrest, which may be of concern given its possible significance to her claims. Asked why she had not previously raised this claim, she stated that she was not legally represented when she lodged her protection visa application. When raised with the applicant that there was no mention of this claim in her Tribunal statement, which was prepared while she had a representative, she stated that she did not tell everything to her ‘lawyer’.
Asked why she did not apply for protection until mid-June 2016 if she feared harm for reasons of her TIM involvement at the time of her arrival in Australia in October 2015, she responded that she thought she would be able to return to Madagascar but after 6 months her aunt and parents told her it was not safe to return, and she needed to apply for protection. I raised with the applicant that this appears inconsistent with the claims in her protection visa application and Tribunal statement that she left Madagascar in fear for her life due to the threats she received following the 2014 incident. She reiterated that she hoped to be able to return to Madagascar but realised it was not safe to do so.
Asked whether she has had any involvement in political activities, including via social media, while in Australia, she stated no. She follows the TIM youth group [on social media] but does not post any comments or engage in any way in discussions. She regrets her previous political activity because of the problems it caused and doesn’t wish to have any further involvement. I discussed with the applicant that this appears inconsistent with the claim in her Tribunal statement that she cannot change her political opinion and will not tolerate injustice. She reiterated that she doesn’t want to have any further political involvement because of the trauma caused by her previous involvement.
Asked how she obtained the TIM support letter, she stated that her father requested it from the TIM. Asked whether the author has personal knowledge of her previous involvement with the TIM, she stated that they do because the group maintains records of former members, including those who have ‘gone missing’ or departed the country. Regarding the reference in the letter to her being an ‘active member’ of the TIM, she stated that she maintains contact with some of the members but has no active involvement with the TIM.
Regarding the claims raised in the Pre-hearing submission that she would be at risk of harm for reasons of her gender, she stated that women are marginalised in Madagascar and domestic violence is common. Asked about any previous experiences of harm in Madagascar, she referred to an incident in 2012 where she was hit by a man (previously unknown to her) at a karaoke bar. She went to the police, but they were not helpful. Asked why she would be without male protection given she has her father in Madagascar, she responded that her father is an alcoholic and would not be able to protect her and her brother is deceased.

I discussed with the applicant that, while I acknowledge that gender-based violence and discrimination are issues in Madagascar, I would need to consider whether there is a real chance of the harm occurring based on her particular circumstances and whether any harm is of a level that engages protection obligations. I explained that not all discrimination amounts to persecution and outlined examples of serious harm in s 5J(5) of the Act.
In response the applicant stated that her brother’s death from [a medical condition] in January 2024 was caused by a beating from people that he worked with in [industry 1]. She suggested that this was connected to her family’s involvement with the TIM. Asked how her brother’s co-workers would be aware of her family’s TIM involvement given that it had been 10 years since she or her parents were actively involved with the group, she stated that she doesn’t know. I raised with the applicant that, based on the available evidence, I may not accept there to be any connection between her brother’s death and her family’s political activity.
Regarding the claims raised in the Pre-hearing submission concerning poverty levels and food insecurity in Madagascar, I acknowledged that these are issues in Madagascar. However, these appear to be issues that affect all people in Madagascar as opposed to her personally.
I discussed with the applicant that, while I have not made up my mind, I have credibility concerns with aspects of her political claims including why she would be personally targeted by the authorities for approximately one year following the 2014 incident given her low level of involvement with the TIM; why she would be of any adverse interest to the authorities given the significant lapse of time since her departure and the absence of any ongoing targeting of her or her family members and her ability to obtain a passport in early 2015 and depart lawfully from Madagascar. I noted that I would take her responses to these issues into account.
Asked whether there was anything further she wished to tell me regarding her claims or why she cannot return to Madagascar, she reiterated that she does not feel safe to return for the reasons claimed.
The applicant’s representative made oral submissions noting that the applicant was only [age] years old when she departed Madagascar and her negative political experiences have traumatised her, causing her to fear any further involvement in political activity. She witnessed many injustices in Madagascar and was fortunate not to have been more seriously harmed in connection with the incident in 2014. She wished to return to Madagascar on expiry of her Visitor visa but her family was fearful of the consequences, causing her to apply for protection. She has lived for the past 10 years in a free country and would be adversely affected, particularly as a woman, if she were to return to Madagascar.
Findings and assessment
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[3] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
Political claims
[3] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547
Based on the overall consistency of the claim, I accept that the applicant was involved as an ordinary member or supporter of the youth branch of the TIM from 2013 until late 2014. I accept that she attended a protest as part of this group in around September 2014 which was dispersed by the authorities with the use of force. This is generally consistent with country information, including that cited in the delegate’s refusal decision and in the Pre-hearing submission.
According to the 2023 US State Department report, security forces regularly impeded opposition gatherings throughout the country and used excessive force to disperse demonstrators. Several times during the year security force members used tear gas and discharged their weapons into the air to disperse demonstrations by university students, supporters of political opponents, vanilla farmers, inhabitants of several urban areas protesting frequent power outages and water shortages, and other groups. On 2 October 2023, approximately 800 to 1,000 demonstrators and multiple opposition presidential candidates organised a protest in downtown Antananarivo to demand government concessions related to the presidential election and to protest the government’s restrictions on political gatherings in public spaces. Authorities, which included a mix of police, gendarmerie, and military, ultimately fired several rounds of tear gas to disperse the demonstrators. Two presidential candidates suffered injuries and the secretary general of the TIM was arrested. During the presidential campaign, authorities continued to use nonlethal force, primarily tear gas, to disperse protesters and prevent rallies by opposition candidates.[6]
[6] US Department of State, 2023 Country Reports on Human Rights Practices: Madagascar, 22 April 2024
I accept that the applicant was introduced to the TIM through her parents who were actively involved with the group from 2008 until her departure from Madagascar in 2015, although their involvement decreased following the 2014 incident.
However, I have significant concerns with the applicant’s claims to have been personally targeted following the incident in late 2014 until her departure from Madagascar in October 2015, a period which the applicant agreed at hearing amounted to approximately one-year. She claims to have been followed by unknown men while escaping the protest and attacked with a rock and subsequently received ongoing calls to her mobile in which she and her family were threatened with death. Due to these threats, she claims to have rarely left the house.
I acknowledge that there are reports of opposition political leaders, activists and government critics being targeted, including through arrest and imprisonment, often on charges unrelated to their political positions or for offenses against the public order. On 2 October 2023, security forces arrested Ny Rina Randriamasinoro, Secretary General of the TIM, during a political movement led by a coalition of 11 presidential candidates contesting the candidacy of the former president and the electoral process. Two weeks later he was charged with disturbing the peace – a charge considered by media outlets and NGOs to be politically motivated – and released under judicial supervision pending trial. He was convicted and, on 5 December 2023, a court ordered a two-year suspended sentence.[7]
[7] US Department of State, 2023 Country Reports on Human Rights Practices: Madagascar, 22 April 2024
However, I do not consider it credible that the applicant would be personally targeted in the manner claimed. According to her evidence to the Tribunal, she became involved with the TIM in 2013 as a general youth supporter, held no official role with the group, and had experienced no previous incidents of harm or adverse attention prior to the incident in 2014. I find that the applicant had no significant profile as an opposition supporter that would cause the authorities to personally target her.
I do not consider it plausible that the authorities would locate her mobile phone number and constantly call her with threatening messages over a period of approximately one-year. She claimed that the authorities were threatening to harm her and her family if she continued her involvement with the TIM. Yet, she also claims that she had no further involvement with the TIM following the incident in 2014. As such, it is unclear why the authorities would continue to issue these threats.
I do not accept that the applicant received threatening calls from persons believed to be affiliated with the authorities between the incident in 2014 until her departure from Madagascar in October 2015. As such, I do not accept that she was essentially living in hiding and hardly leaving the house during this period due to a fear of harm from the authorities.
Regarding the claim, first raised at the Tribunal hearing, that she was followed on her return home from the 2014 protest by unknown men who threw a rock at her, I am prepared to accept that some men in her neighbourhood threw a rock at her. However, based on the available evidence, I am not satisfied that she was followed home after the protest or that this had any connection to her involvement with the TIM. She stated that the men did not speak to her and there is nothing to indicate that they were connected to the authorities. She claims that the incident was connected to her TIM involvement because the threatening calls started shortly afterward. However, as above, I do not accept that the applicant received threatening calls. Based on the available evidence, I find this to be a random incident.
The applicant’s ability to obtain a passport in [2015] and lawfully depart via the airport in Madagascar in October 2015 further indicates that she was of no adverse interest to the authorities. I do not find the applicant’s explanation that she was able to obtain a passport because her [Relative A] worked at the passport office to be convincing if she was genuinely of adverse interest.
I have significant concerns regarding the new claim that in 2018 her father was arrested and jailed for several years due to his TIM involvement. Given that this occurred following lodgement of the protection visa application and the applicant’s failure to attend her interview with the Department in 2021, I have drawn no adverse inference from this claim not being raised with the Department. However, given the potential significance of this to her protection claims, I do have concerns that it was not raised in her Tribunal statement or the Pre-hearing submission. I do not find the applicant’s explanation that she did not disclose everything to her representative to address my concerns. I am prepared to accept that her father was arrested in 2018 and spent 2 years in jail. However, I do not accept that this had any connection to his involvement with the TIM. As discussed below, there is no plausible reason why her father would be arrested in 2018 and jailed for reasons of his previous involvement with the TIM.
According to the applicant’s evidence, her parents ceased their involvement with the TIM in 2015. While I have accepted that they were active TIM members between 2008 and 2015, the available evidence does not indicate that they held any official position within the group, had any political profile of significance, or were personally targeted by the authorities due to their TIM involvement. While I accept that her parents have moved several times since the applicant’s departure from Madagascar, have experienced employment challenges and suffered from health-related problems, there is nothing to indicate that these issues have any connection to their previous involvement with the TIM. I find that the applicant’s parents have not been targeted or harmed by the authorities for reasons of their TIM involvement.
The applicant raised a claim at the Tribunal hearing that her brother’s death in January 2024 was connected to her family’s involvement with the TIM. She did not provide any plausible explanation for this claimed connection and, considering my findings above regarding her and her parents’ TIM involvement, I do not accept this claim to be credible.
Regarding the TIM support letter, I accept this was written by the author in July 2024, following a request by the applicant’s father. I accept that it generally supports the applicant’s claims that she and her parents were previously involved with the TIM. However, I have given this letter no weight in regard to the claim that the applicant’s departure from Madagascar in 2015 was due to political persecution by the authorities. There is no evidence that the author has any direct knowledge of the applicant’s involvement with the TIM in 2014 or is personally aware of the reasons for the applicant’s departure in 2015. The author’s statement that the applicant is an ‘active member’ of the TIM is not supported by the applicant’s own evidence that she has not been involved in any activities in support of this group while in Australia.
The applicant confirmed to the Tribunal that she has had no active involvement in political activities, including on social media platforms, while in Australia. She indicated that this was because of the trauma that she experienced from her previous involvement with the TIM in Madagascar. Given my findings above of her political experiences in Madagascar, I am not satisfied that the applicant’s lack of involvement in political activities in Australia is due to her past experiences. While I acknowledge that she was involved in a protest in 2014 which was dispersed with force by the authorities, I am not satisfied that this in itself would have traumatised her to an extent that has deterred her from engaging in any political expression while in Australia.
She acknowledged to the Tribunal that she would not wish to be involved in any political activities if she were to return to Madagascar. While the applicant’s representative submitted that this is due to a fear of harm, I am not satisfied that this is the case. Given my findings above, I am satisfied that she would refrain from political activity – as she has done in Australia – of her own choosing and not due to a fear of harm.
Considering the above, I find there to be no real chance (being a possibility that is not remote or far-fetched[8]) that the applicant would face harm if she returns to Madagascar for reasons of her previous involvement with the TIM or that of her parents. The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[9] For the same reasons discussed above, I find that there is not a real risk that the applicant will suffer significant harm due to her or her parents’ previous TIM involvement as a necessary and foreseeable consequence of her return to Madagascar.
Gender-based harm
[8] Chan Yee Kin v MIEA [1989] HCA 62
[9] MIAC v SZQRB [2013] FCAFC 33
I have considered the claim raised before the Tribunal that the applicant would be at risk of gender-based harm or discrimination in Madagascar as a female or a female without male protection. I acknowledge that country information, including that cited in the Pre-hearing submission, indicates that gender-based discrimination and violence are problems in Madagascar.
According to the US Department of State, while the law prohibits domestic violence, it remains a widespread problem and is commonly viewed as a family issue rather than a criminal matter. The government is reported to be taking some steps to address the problem, for example, in 2023 a series of events were organised in several regions to raise awareness of gender-based violence and in November the authorities launched 16 days of activism to combat gender-based violence. The Proximity Female Brigade within the national police conducted investigations of gender-based violence and raised public awareness. Both police and gendarmerie had their respective ‘brigades for morals and minors’ protection’.[10]
[10] US Department of State, 2023 Country Reports on Human Rights Practices: Madagascar, 22 April 2024
Sexual harassment is prohibited under the law, which was enforced by the authorities. However, sexual harassment, particularly verbal harassment, was culturally tolerated and widespread including in many sectors of the workforce. While labour laws prohibit workplace discrimination based on gender, women often do not receive equal pay for substantially similar work. Labor unions reported women faced discrimination in hiring and promotion, with men earning 15 per cent more on average than women across all career fields. In rural areas, where most of the population worked in subsistence farming, traditional social structures tend to favour entrenched gender roles, leading to a pattern of discrimination against women.[11]
[11] US Department of State, 2023 Country Reports on Human Rights Practices: Madagascar, 22 April 2024
According to Amnesty International, women and girls in Madagascar face discrimination and inequality. Gender-based discrimination was pervasive and disproportionately affected women and girls, particularly in educational settings, where, according to media reports, preconceived ideas about gender roles led to inequality and discrimination against girls.[12]
[12] Amnesty International, The State of the World’s Human Rights: Madagascar, April 2024
While acknowledging the above, I must consider the applicant’s particular circumstances and make an assessment of whether there is a real chance or real risk that she would face harm amounting to serious or significant harm. I find that the applicant would likely return to Antananarivo, where she previously resided and has familial support, including her parents and sister.
She claims that she would be without male protection because her brother has passed away and her father is an alcoholic. I am prepared to accept that her father has difficulties with alcohol and suffers from some degree of depression. However, there is no evidence before me to indicate that this affects his ability to function to a degree that he would be unable to offer the applicant any support or protection. She confirmed to the Tribunal that her father was responsible for obtaining the TIM support letter and has generally supported her remaining in Australia to seek protection. The applicant has not raised any claim to fear harm from her father (or from any other family member) and I find that this does not arise on the facts. I find that she would be returning to Antananarivo, where she would have the support of her father, mother and [a sister].
When asked at the Tribunal hearing about any previous experiences of gender-based violence, the applicant referred to an incident in 2012 where she was hit by a man at a karaoke bar. I accept this as credible. I have also accepted above that in 2014 some men in her neighbourhood randomly threw a rock at her. However, based on the available evidence I am not satisfied that this incident was for reasons of her gender. Considering her past experiences and her circumstances on return, I find the chance of the applicant being subjected to gender-based violence in the reasonably foreseeable future in Madagascar to be remote and am not satisfied that it amounts to a ‘real chance’. For the same reasons,
I find that there is not a real risk that the applicant will suffer significant harm as defined in

s 36(2A) of the Act because of her gender as a necessary and foreseeable consequence of her return to Madagascar.
The applicant completed high school and undertook tertiary studies in [subject 1] for approximately one year. She was employed in an office role for approximately one year in Antananarivo and has been working in Australia as [an occupation 2] and in hospitality. She has had the opportunity to travel overseas and reside in Australia for an extended period. As demonstrated at the Tribunal hearing, she is able to speak and understand English.

I accept that there is a real chance that the applicant will experience a degree of gender-based discrimination in the workplace, including in relation to wages and access to employment opportunities. However, in her particular circumstances, I do not find this to amount to serious harm for the purposes of the refugee criterion, examples of which are set out in s 5J(5) of the Act. I find that she would not suffer serious economic hardship, the denial of access to basic services or the denial of the capacity to earn a livelihood of any kind that would threaten her capacity to subsist.
For the same reasons, I find that there is a real risk that the applicant will experience a degree of gender-based discrimination in the workplace. However, I am not satisfied that this would amount to significant harm as exhaustively defined in s 36(2A) of the Act. The definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. I find that any gender-based workplace discrimination would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions.
Poverty and food insecurity
I acknowledge the country information cited in the Pre-hearing submission regarding poverty and food insecurity in Madagascar. However, I find these issues to not be for any of the reasons in s 5J(1)(a) of the Act and to therefore not satisfy the refugee definition. For the purposes of the complementary protection criterion, s 36(2B)(c) in conjunction with
s 36(2)(aa) requires there to be a real risk to the applicant personally, rather than a risk that applies to the population of the country generally. I find that issues of poverty and food insecurity apply to the population of Madagascar generally, not to the applicant personally.
Conclusions
The applicant has not claimed to fear harm for any other reason if she returns to Madagascar and I find that no other protection claims arise on the accepted facts.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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.
Mia Bailey
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 4402

20 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice