2201047 (Refugee)

2201047 (Refugee) [2023] AATA 2519 (9 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2201047
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Scott Clarey
DATE:9 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 June 2023 at 1:56pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – fear of harm from family because of relationship with Christian man from another country – beatings and threats to kill – first hearing adjourned as applicant unwell, no participation in second hearing and consent to decision on papers – vague and inconsistent claims and evidence, and very limited information about claimed boyfriend and relationship provided – applicant’s responsibility to specify claims and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 March 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a [age]-year-old Malaysian woman. In her original protection visa application, [the applicant] stated that she was born in the Johor Province, Malaysia on [date]. She stated that she speaks Malay and English. She indicated she is of ‘Malay’ ethnicity and of the Muslim faith. [The applicant] stated she has never been married or in a de facto relationship. She does not have any children. [The applicant] arrived in Australia [in] July 2015 having departed Malaysia legally, entering Australia on a Class UD (Subclass 601) Visitor visa. I accept this biographical information to be true.
On the basis of the copy of [the applicant]’s Malaysian passport provided to the Department, I accept that she is a citizen of Malaysia and that her identity is as she claims it to be. I accept that Malaysia is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
[The applicant] applied for the visa under review on 28 September 2015 and the delegate refused to grant the visa on 10 March 2016, on the basis that they were not satisfied the applicant was owed protection in Australia. [The applicant] provided the Tribunal with a copy of the delegate’s decision record. The Tribunal, as previously constituted, affirmed the delegate’s decision on 7 February 2017. [The applicant] subsequently appealed the Tribunal’s decision to the Federal Circuit Court of Australia (FCC) on 21 March 2017. The FCC remitted the matter for reconsideration to the Tribunal on 2 December 2021. In the Court order, the Court noted that the Tribunal had fallen into jurisdictional error by neglecting to adequately consider issues related to [the applicant]’s claims for protection, including those related to adverse credibility findings by the Tribunal as previously constituted. The matter is now before the Tribunal (as presently constituted) pursuant to an order of the Court.
The applicant appeared before the Tribunal (as presently constituted) on 26 May 2023 to give evidence and present arguments. Part way through this hearing, the applicant began to feel unwell and the hearing was adjourned. On 29 May 2023, the Tribunal wrote to the applicant inviting her to a resumption of the adjourned hearing on 1 June 2023. On 30 May 2023, the applicant responded to the Tribunal’s resumed hearing invite and indicated she would not participate in the resumed hearing and that she consented ‘to the Tribunal making a decision on the papers without taking further steps to allow [her] to appear’. The Tribunal hearing on 26 May 2023 was conducted with the assistance of an interpreter in the Malay and English languages. In these circumstances, I have decided to make a decision having regard to all the information before me, including all the information previously provided by the applicant to the Department and to the Tribunal as previously constituted.
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has had regard to all the evidence on the Department’s file, the Tribunal’s file (as currently constituted) and the previously constituted Tribunal’s file. I note that the applicant did not present any witnesses at either of her Tribunal hearings, and has submitted very little documentary evidence to the Tribunal (either as previously or presently constituted) to support her claims.
Claims from the protection visa application
[The applicant] set out her claims for protection in her visa application form as follows (unedited):
Q 89:    I am seeking protection in Australia so that I do not have to return to:
A.       Malaysia
Q 90.    Why did you leave that country(s)?
A: I was working as a general worker, at [Workplace 1] in my country. I have met one Korean boy and we’ve fallen for each other. After a year in relationship we have decided to settle down and agreed for mix marriage between Muslim and Christian. Because of that my family didn’t allowed me and not bless our decision.
My father once beat me because I didn’t obey to him. I really want to marry my boyfriend. I was going through a lots of torture and humiliation from my own family. I can accepted their irrespective towards my decision but to torture, used action gesture and humiliated me infront of people is very unacceptable as a human being. They forced me to tender my resignation from [Workplace 1]. Even though I have insisted them not to forced me, they went to see my employeer and its really hurted my feelings and I felt humiliated. I become stress emotionally. My boyfriend asked me to elope. I sneaked from the house and flew to Korea with my boyfriend. I have met my boyfriend’s family in [City 1]. We didn’t get his family’s bless as well. A lots of arguments happened bet his and his family and we moved to his friend’s house. I asked his to postponed the marriage and we just stay together.
A few weeks after that my boyfriend went missing and didn’t go home, I feel so worried and I try to come to his parent’s house to tell them about this I saw his father pointing a knife to my boyfriend’s stomach. I really scared and run because I was afraid they will kill me too.
I arrange my flight and go back to Malaysia. I go to see my parents and want to seek their forgiveness but unfortunately my parents have disowned me as their daughter and threatened to kill me because I had give them a bad reputation and bad name. I really scared and run away from home. I have rented a small room in village and started my small online business. Because I don’t want my parents spotted me everywhere if they saw definitely, they will kill me. Few months I locked my self isolated from people and become trauma. The tragedy in Korea still haunted my life. I try to get along with people outside but I really scared if my parents found me they will do the same thing to me. To be far away from my family I travel to and from everyday to Singapore. I was spotted by 1 of my cousin and he told my parents about where I am. Soon my parents come and try to beat and torture me. I was manage to run. I became stress and afraid. I didn’t have choice to fled to Australia to start a new life and seek protection from the government of Australia.
Q 92.    Did you experience harm in that country?
A:       Yes.
I was beaten, tortured and humiliated by my own family. They beat me because I obey to what their thoughts. Tortured many times and humiliated infront of public and my friend as well as to the people that I have known. I was even threatened to be killed because of my returning back to Malaysia and seek forgiveness from them.
Q 93.    Did you seek help within the country(s) after the harm?
A:       No. I’m so terrified and I was so afraid to seek help within my country.
Q 94.    Did you move, or try to move, to another part of that country(s) to seek safety?
A: No. I never moved within that country but I was try to moved to other country such as Korea and, to and pro to Singapore so my parents didn’t spotted me everywhere in that country but they have found me. Back in Korea. I was saw a tragic incident and made me trauma and stressed.
Q 95.    Do you think you will be harmed or mistreated if you return to that country(s)?
A:       Yes, My family still want to kill me.
Q 96.    Do you think the authorities of that country(s) can and will protect you if you go back?
A:       No, I’m not sure about this.
Q 97.    Do you think you would be able to relocate within that country(s)?
A:       No, I don’t think that country is safe for me.
Evidence from the Tribunal hearing on 26 May 2023
At the hearing, [the applicant] told the Tribunal she was born in Johor Bahru, Malaysia on [date] 1987. She said that she has [a] brother and [a] sister. [The applicant] stated that she was of the Islamic faith. I note that on her protection visa application form [the applicant] had stated that she was of the Malay ethnicity. When asked at the Tribunal what her ethnicity was, [the applicant] responded that it was ‘Cambodian’. I asked [the applicant] why she had answered differently on her protection visa application form. She responded with a vague answer stating that she had grown up in Malaysia but her parents fled during the war in Cambodia and came to Malaysia as refugees. I again asked [the applicant] why there was an inconsistency between her answers to effectively the same question on the protection visa application form and when asked at the hearing. She responded with words to the effect that she was ‘only Malay’ and said at the time of completing the form she had not disclosed the full information and had only given the person filling out the form for her ‘bits and pieces’ of information.
[The applicant] told the Tribunal that she finished school in Grade 6, and did not work, instead staying home to help her mother at her parents’ request. I discussed with [the applicant] specific information provided on her protection visa application form that indicated she had attended a particular high school in Malaysia between [year] and [year]. [The applicant] gave a vague response, stating words to the effect that a friend had completed the form for her. I asked [the applicant] why, at the beginning of the hearing when I had asked if all information on her protection visa application form was true and correct as far as she was aware, she had responded that it was, but was now stating that this element of the form was incorrect. She responded with words to the effect that she did not notice at the time what had been written in the education section of the form, and reiterated that she did not attend secondary school. I asked [the applicant] why specific information including dates and the name of a particular Malaysian school had been written on the form. She stated that the person filling in the form had attended that school and had put information relating to it on her form.
[The applicant] said she engaged in factory work from [age], including in a [Product 1] factory, a [Product 2] and a factory producing [Product 3]. [The applicant] said she had also worked in Singapore at a [Workplace 2] prior to coming to Australia, although she could not remember the year she had started working there. She said that prior to working at a [Workplace 2] in Singapore, she had worked at a [Workplace 2] in Malaysia for one year.
I asked [the applicant] why she had decided to depart Malaysia and travel to Australia in July 2015. [The applicant] stated that people had told her that there were plenty of job opportunities in Australia and she had decided to come here to look for better work than was available to her in Malaysia. I asked [the applicant] what work she had engaged in since arriving in Australia. She said that she had worked at a [Product 4] factory when she had arrived and had worked there for five years. She said that after quitting work at the [Product 4] factory she had a short break and then began working at a [Product 5] factory. She said she had recently commenced working at [Employer 1], days prior to the hearing. There was some confusion around when [the applicant] had started work after arriving in Australia. I asked [the applicant] about information provided in her protection visa application form which stated that she had not worked between arriving in Australia in July 2015 and applying for the protection visa in September 2015. She said words to the effect that she had been working at that time but had intentionally provided false information on the form because she was working illegally. [The applicant] stated: ‘When we were filling out the form I was afraid because my status was illegal I was afraid that I was working without a proper visa’. I asked [the applicant] why she had told me at the beginning of the hearing that all of the information in her protection visa application was true and correct when, by her own subsequent admission, it wasn’t. She stated in response ‘because I wish to tell you the truth now’.
I asked [the applicant] if there were any other reasons why she had decided to leave Malaysia and come to Australia in 2015. I note that [the applicant]’s response was particularly vague, hesitant and evasive. She stated words to the effect that she was afraid of her parents because they ‘scolded’ her. She said words to the effect that she was sexually harassed by men, and when she told her parents about it they did not believe her. When I asked [the applicant] for more information about why her relationship with her parents was not a positive one, she said words to the effect that it was normal for her parents to scold her as they had been scolding her since she was young. When I asked why they scolded her, she said that she didn’t know but her parents were ‘fierce’ and very strict. She said that she would be scolded by them for various reasons including not doing her housework and for not praying.
I asked [the applicant] if there was any other reason why there had been conflict with her parents in Malaysia. [the applicant] stated that she had a boyfriend who was non-Muslim. I asked [the applicant] when she had met her boyfriend. She gave a vague answer in response stating it was before she went to work in Singapore when she was working in Malaysia. I asked [the applicant] if she could give me a rough date when she claimed to have met her former boyfriend. [The applicant] stated that she could not remember because it was a long time ago. I asked [the applicant] if she could name the year that she had met her former boyfriend. She said that she could not remember what year they had met. She said that she and her former boyfriend were working together at the same [Workplace 2] in Malaysia, which is where she had got to know him. She said that a relationship had begun and she decided to move out of the family home to live with her boyfriend in a rented room in Johor, approximately eight months after meeting him.
It was at this point in the Tribunal hearing that [the applicant] began to feel unwell. After a short adjournment, [the applicant] informed the Tribunal that she was not well enough to continue with the hearing on that day. The hearing was adjourned to a later date. As noted above, when [the applicant] was invited (on 29 May 2023) to attend a rescheduled hearing on 1 June 2023, she responded (on 30 May 2023), and indicated she did not wish to participate in the resumed hearing and that she consented ‘to the Tribunal making a decision on the papers without taking further steps to allow [her] to appear’. I note that [the applicant] has not provided any further documentary evidence to the Tribunal in support of her claims.
THE RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Findings and reasons

A refugee is a person who has, as defined in s 5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim by the person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims.
As has been noted above, the applicant chose to waive her right to a resumed hearing and chose not to engage further in the review process, including by providing any significant new/additional information to the Tribunal relating to her claims.
I accept that [the applicant] is a Malay woman of the Islamic faith who was born and raised in Johor Bahru, Malaysia. I accept that she has never been married and does not have any children. I accept that her two siblings and parents still live in Johor Bahru. I accept that she travelled from Malaysia to Australia in 2015 to pursue better employment opportunities than those that were available to her in Malaysia.
Credibility
I acknowledge the importance of adopting a reasonable approach when making findings of credibility.[1] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2]
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court, Foster J at 482
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
I note that there were significant credibility issues arising from specific information provided by [the applicant]. As a result, I have serious concerns about the reliability of [the applicant]’s evidence in support of her claims to fear harm related to a previous relationship she claimed to have had with a [Nationality 1] man. I note that various aspects of her oral evidence differed markedly from her written claims made on the protection visa application. I note that [the applicant] provided hesitant, vague and at times inconsistent and contradictory evidence when questioned about specific details of her claims. Her responses were often evasive, highly generalised and/or off-point. This included evidence related to specific details of the claimed relationship with a Korean man and the threats she claimed to have faced from her family and the man’s family. I also consider a number of aspects of her evidence to be internally inconsistent and/or highly generalised in nature, including in relation to the timeline of her claimed relationship with a Korean man and fears of harm she had for the future if she were to return to Malaysia.
I note that [the applicant] gave inconsistent and contradictory evidence in relation to key (and often elementary) aspects of her claims. For example, at the Tribunal hearing (as previously constituted), [the applicant] told the Tribunal that information in her personal statement that suggested she had been beaten and tortured by her parents was untrue and did not happen. When asked why it was included in her protection visa application form, [the applicant] stated words to the effect that the detail had been added by the person completing the form on her behalf. [The applicant] also told the Tribunal (as previously constituted) that an incident mentioned in her protection visa application form (including a personal statement that was submitted with the form) about being threatened with a knife by the father of her claimed Korean ex-boyfriend was untrue and had never happened.
I note also that several aspects of [the applicant]’s oral evidence at both Tribunal hearings were particularly vague, internally inconsistent, and/or highly generalised in nature. For example, at the Tribunal hearing (as previously constituted), [the applicant] could not remember the full name of her claimed Korean ex-boyfriend, stating that his name was ‘[Given name]’ but that she did not know his family name. At the Tribunal hearing (as presently constituted) on 26 May 2023, [the applicant] could not recall basic details about her relationship with her claimed Korean ex-boyfriend, including what year they had first met.
I am mindful that memories can be dimmed by the passage of time. I accept that it is not always possible or necessary for an applicant to remember specific details or dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed and regarding the serious threats she claimed to have been subjected to, I have formed the view that it could be reasonably expected that [the applicant] would have had a more precise and coherent recollection of the specific events and dates relating to her claimed relationship with her Korean ex-boyfriend and her claimed fear of harm related to this issue in Malaysia. I do not accept that these inconsistencies, discrepancies, generalities and/or concerns can be explained by mistakes made by a person [the applicant] claimed to have helped her complete the form or by general confusion felt by [the applicant].
As noted above, I find various details provided by [the applicant] about her claims to the Tribunal to be vague and generalised. Her claims as submitted do not provide anywhere near the kind of detail that would lead me to be satisfied that she was at risk of serious harm amounting to persecution if she were to return to Malaysia in the foreseeable future. [The applicant]’s claims in their entirety lack the kind of specific detail that would satisfy me that she had actually experienced adverse treatment or was at risk of suffering persecution as claimed. Given the lack of specific detail relating to her generalised claims, and the inconsistencies in the information she has provided, I am not satisfied, on the information before me, that any of these events occurred as claimed.
Considering all of the evidence cumulatively, and having regard to [the applicant]’s personal circumstances and narrative as a whole, I do not find her to be credible. I find various aspects of [the applicant]’s evidence in relation to having been threatened in relation to a claimed relationship with a Korean man to be vague, inconsistent, improbable and, ultimately, unpersuasive. I note that there is very little documentary evidence to corroborate any of [the applicant]’s claims. For the reasons outlined above, I do not accept she was in a relationship with a Korean man in Malaysia. I do not accept therefore that she travelled to Korea with him previously. It follows that I do not accept she was threatened by her family (or anybody else) because of this claimed relationship (or for any other reason). I do not accept she was threatened by her claimed Korean ex-boyfriend’s family in Korea or Malaysia. I do not accept that [the applicant] was a victim of sexual harassment in Malaysia or that she was otherwise threatened, harassed, targeted or pursued by her family, the government or anybody else for reasons relating to a previous relationship with a Korean man or for any other reason.
I note that [the applicant] stated in her protection visa application form that she was of the Malay ethnicity[3], and that her parents were both born in Johor, Malaysia.[4] I do not accept oral evidence given at the Tribunal hearing on 26 May 2023 (outlined above) that appeared to suggest she may be of ‘Cambodian’ ethnicity and/or ancestry. I do not accept that [the applicant]’s parents were (or are) Cambodian migrants to Malaysia or that they were ever refugees.
[3] Folio number 36 on the Department file (question number 33 in part C of the protection visa application form)
[4] Folio number 34 on the Department file (question number 43 in part C of the protection visa application form)
I am therefore not satisfied [the applicant] faces a real chance of suffering persecution involving serious harm for reasons of her race, religion, nationality, political opinion (either actual or imputed), or her membership of a particular social group, or for any other reason she has claimed or can be distinguished on the information before me, by the authorities, her family or friends, or anyone else if she returns to Malaysia, now or in the reasonably foreseeable future. I find that [the applicant]’s fears of persecution on this basis are not well-founded.
I acknowledge that it may be difficult for [the applicant] to find work at least initially on return to Malaysia, given she has been out of the country for a few years but I am not satisfied that such difficulties constitute a well-founded fear of persecution for a refugee reason. Based on her own evidence at hearing, [the applicant] has significant work experience (in both Malaysia and Australia). [The applicant] did not indicate that she was ever prevented from obtaining work in Malaysia, or that she had been denied employment by anyone for any reason or that she feared she might be in the future. Taking into account these considerations, I do not accept that [the applicant] faces a real chance of serious harm including significant economic hardship that threatens her capacity to subsist; a denial of access to basic services, where the denial threatens her capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (as per s 5J(5) of the Act). I find that any fears [the applicant] may hold in this regard are not well-founded.
Conclusion – refugee grounds
Having considered the applicant’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that she does not face a real chance of persecution on return to Malaysia for any reason in the reasonably foreseeable future and that her fear of persecution is not well-founded.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
For the reasons given above, I have found there is not a real chance that the applicant would suffer persecution involving serious harm for reasons of her ethnicity, religion, political opinion, either actual or imputed, or her membership of a particular social group or for any other reason she has claimed or can be distinguished on the information before me by the authorities or anyone else if she returned to Malaysia, now or in the reasonably foreseeable future.
In considering whether there is a real risk that the applicant would suffer significant harm if returned to Malaysia, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[5]
[5] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The applicant has not advanced any claims indicating that she considers she would face a real risk of significant harm if returned to Malaysia other than for the reasons discussed above relating to her claims under the refugee criterion. Given I do not accept that the applicant faces a real chance of suffering persecution involving serious harm if she returns to Malaysia, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she would: suffer significant harm in the form of being arbitrarily deprived of her life; having the death penalty carried out on her; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by the Malaysian authorities, or anyone else, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia.
Consequently, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(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.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
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.
…

[2023] AATA 2519

9 June 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Remedies