2200942 (REFUGEE) [2025] ARTA 833 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2200942
Tribunal:General Member D Keenan
Date:3 March 2025
Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 03 March 2025 at 2:20pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – fears harm from ex-husband – extra-marital affair – physical and verbal abuse – particular social group – women in Malaysia – gender based violence – restricted contact with son – effective protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any 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
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 4 October 2021. The delegate refused to grant the visa on the basis that effective protection measures were available to the applicant in Malaysia and they therefore did not have a well-founded fear of persecution.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant is a [age]-year-old female Malaysian citizen. She arrived in Australia [date] March 2020 as the holder of an Electronic Travel Authority (subclass UD-601P120). The applicant’s provided a copy of her Malaysian passport issued on [date] 2018 to the Department at the time of lodging her protection visa application. I accept the applicant is a Malaysian citizen.
EVIDENCE
Evidence before the Department
According to the information in the protection visa application, the applicant was born in Pulau Penang on [date]. She completed her primary school and high school education in Pulau Penang. She is of the Malaysian Chinese ethnic group and her religion is Buddhism. Her marital status was listed as separated.
Her written claims for protection were that she had a relationship with a person named [name] when she was working in Ipoh. They became friends and dated a few times. He was deeply in love with her and when she refused to marry him, he became hostile. He threatened to make stories about her to her friends, that if he…
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- AGLC
- 2200942 (Refugee) [2025] ARTA 833
- Case
- [2025] ARTA 833
- Decision Date
CaseChat Overview and Summary
In the matter of 2200942 (Refugee), the applicant, a Malaysian citizen, sought a review of a decision by the Department of Home Affairs to refuse her application for a protection visa. The applicant alleged that she had a well-founded fear of persecution if returned to Malaysia due to threats made by her ex-husband, including threats of physical harm and death if she refused to marry him. The case was heard by the Administrative Review Tribunal, which was previously the Administrative Appeals Tribunal before its transition on 14 October 2024. The Tribunal had to determine whether the applicant was a refugee under the Migration Act 1958 and if she had a well-founded fear of persecution in Malaysia.
The legal issues revolved around the interpretation of "refugee" under the Act and whether the applicant met the criteria for a protection visa. Specifically, the Tribunal had to consider if the applicant had a well-founded fear of persecution in Malaysia and whether there were effective protection measures available to her. The Tribunal also needed to examine if the applicant's claims about the threats from her ex-husband constituted persecution and if she could be considered a member of a particular social group.
The Tribunal found that the applicant had provided credible evidence of threats and abuse from her ex-husband, which constituted persecution. It was noted that the Malaysian authorities could potentially intervene, but the Tribunal was concerned about the effectiveness of such measures in practice. The Tribunal also considered the applicant’s membership in a particular social group, namely women in Malaysia facing gender-based violence. The Tribunal concluded that the applicant had a well-founded fear of persecution due to the serious harm she anticipated if returned to Malaysia.
The Tribunal set aside the Department's decision and remitted the application for a protection visa for reconsideration, finding that the applicant satisfied the criteria for a refugee under the Migration Act. The Tribunal's decision highlighted the need for a thorough reassessment of the applicant's claims, taking into account the specific circumstances and evidence presented.
The legal issues revolved around the interpretation of "refugee" under the Act and whether the applicant met the criteria for a protection visa. Specifically, the Tribunal had to consider if the applicant had a well-founded fear of persecution in Malaysia and whether there were effective protection measures available to her. The Tribunal also needed to examine if the applicant's claims about the threats from her ex-husband constituted persecution and if she could be considered a member of a particular social group.
The Tribunal found that the applicant had provided credible evidence of threats and abuse from her ex-husband, which constituted persecution. It was noted that the Malaysian authorities could potentially intervene, but the Tribunal was concerned about the effectiveness of such measures in practice. The Tribunal also considered the applicant’s membership in a particular social group, namely women in Malaysia facing gender-based violence. The Tribunal concluded that the applicant had a well-founded fear of persecution due to the serious harm she anticipated if returned to Malaysia.
The Tribunal set aside the Department's decision and remitted the application for a protection visa for reconsideration, finding that the applicant satisfied the criteria for a refugee under the Migration Act. The Tribunal's decision highlighted the need for a thorough reassessment of the applicant's claims, taking into account the specific circumstances and evidence presented.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.BACKGROUND The applicant is a [age]-year-old female Malaysian citizen. She arrived in Australia [date] March 2020 as the holder of an Electronic Travel Authority (subclass UD-601P120). The applicant’s provided a copy of her Malaysian passport issued on [date] 2018 to the Department at the time of lodging her protection visa application. I accept the applicant is a Malaysian citizen. EVIDENCEEvidence before the Department According to the information in the protection visa application, the applicant was born in Pulau Penang on [date]. She completed her primary school and high school education in Pulau Penang. She is of the Malaysian Chinese ethnic group and her religion is Buddhism. Her marital status was listed as separated. Her written claims for protection were that she had a relationship with a person named [name] when she was working in Ipoh. They became friends and dated a few times. He was deeply in love with her and when she refused to marry him, he became hostile. He threatened to make stories about her to her friends, that if he could not marry her, nobody would, and he threatened to kill her if she refused to marry him. She believed he would stalk her and find her if she moved to another part of the country, and she did not think the police could provide effective protection measures. The applicant was not invited to an interview or for further information about her claim. The delegate decided that, as using force or threats to compel a woman to marry against her will or to prevent her from getting married is a punishable offence under Malaysian law, that Malaysians are free to marry people of other races, ethnicities or religions, that Royal Malaysian Police (RMP) has a willingness to enforce the laws, and Malaysia has an impartial judicial system, that effective protection measures were available to the applicant in Malaysia and she therefore did not have a well-founded fear of persecution. Evidence before the TribunalPre-hearing evidence On 25 January 2022, the applicant applied to the Administrative Appeals Tribunal for a review of the Department’s decision. On 27 January 2022, the Tribunal acknowledged the application for review and informed the applicant that if she wished to provide material or written argument for the Tribunal to consider, she should do so as soon as possible. On 27 August 2024, the applicant returned a Pre-hearing information form to the Tribunal. In that form she repeated the claims from her original protection visa claim. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. Oral Evidence at Hearing
Evidence
Evidence Before The Court
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. Oral Evidence at Hearing The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. She said that her protection visa application had been prepared by her lawyer. She had communicated with him via messages only and he had asked her to lodge it. She did not read and understand it before she lodged it. She was not satisfied that everything in her visa application was true and correct. She wished to make new claims at the hearing. In relation to her background she said that she was born in Pulau Penang on [date]. She grew up and was educated there. She moved to Ipoh when she got married at [age] years of age in 1998. She lived in Ipoh with her ex-husband, 2 sons, her daughter and her mother-in-law until before she came to Australia. Her father passed away over 10 years ago. Her mother has lived in a single story, semi-detached property in [Town 1] since 2005. [Town 1] is a 20-minute drive from Penang. Her mother does not work due to her age. She speaks to her regularly at intervals between 10 days and a few weeks. She has 4 siblings, 3 brothers and one sister. One of her brothers lives with her mother, another lives in Kuala Lumpur, and the other brother lives in the countryside of Penang caring for their father’s rice fields. Her sister lives in Penang. Her brother living in the countryside is married with 4 children. She only speaks to her siblings rarely when there is family business to discuss. The applicant was married and then divorced. She has 3 children. The eldest is [age] years old and studying at a university in Australia. Her [age]-year-old daughter is studying at a university in Kuala Lumpur, and her [age]-year-old son is in the first year of senior high school and lives with her ex-husband in Ipoh. She does not currently have a partner. She competed high school in Pulau Penang and has not done any further study since then. In Malaysia she worked as an office clerk in a [company] before she married. The company was owned by her ex-husband. She stopped working after she had children. Since she has been in Australia, she has been working on farms fruit picking. She is currently providing financial support for her daughter’s university education in Kuala Lumpur. She said she had travelled to Australia initially in November 2018 to help her son find a university to attend. She visited him again in 2019 whilst he was attending [a] University.
Decision
Reasons for decision
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).DECISION The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a).Date of hearing: 6 February 2025Representative for Applicant: The Applicant was not representedATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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