2302428 (Refugee)

2302428 (Refugee) [2024] AATA 1364 (2 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kajaliny Ranjith Kumar
CASE NUMBER:  2302428
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Mark O'Loughlin
DATE:2 April 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies 36(2)(aa) of the Migration Act; and
(ii)that the other applicant satisfies 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 02 April 2024 at 5:05pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – membership of particular social group – single mother who has suffered family violence – fear of harm from former fiancé and his family – denial of paternity, rejection of child and threats – abused and beaten, and found after relocating – disapproval and no support from own family – inaction by police – real chance of persecution does not relate to all areas – complementary protection – country information – relocation unreasonable and difficulties for women subjected to violence – domestic violence perceived as private family matter – member of family unit child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (c)(i), (e), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33

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 Immigration and Border Protection on 29 September 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 April 2016. The delegate refused to grant the visas on the basis that the applicants are not refugees because their fear of persecution is not for one of the reasons specified in S5J(1)(a), and are not owed complementary protection because they could expect state protection and also would be able to relocate away from the significant harm they fear without leaving Malaysia.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of that Court.
The first applicant (also referred to as ‘the applicant’) appeared before the Tribunal on 25 October 2023 by video link to give evidence and present arguments. The second applicant, an infant, did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The relevant 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). To be eligible for a Protection Visa an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
The criterion described in S36(2)(a) is referred to as the “refugee criterion”.
Mandatory considerations
In accordance with Ministerial Direction No.84 made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, either applicant is a person to whom Australia has protection obligations.
Background and Claims
The applicants set out their claims in their Protection Visa Applications (PVAs). The first applicant’s PVA was lodged on 4 April 2016 and the second applicant’s PVA was lodged on 28 June 2016
The Tribunal summarises the first applicant’s claims in her PVA as being:
·That her Malaysian boyfriend denied he was the father of her baby.
·He and his family threatened her with harm including making death threats
·Her family does not support her either and she could not live with them.
·She does not believe the Malaysian police would offer her protection as they would regard this as a family matter and not their concern.
The second applicant’s claims from her PVA are essentially that she would be subjected to the same type of harm as her mother if she were returned to Malaysia.
In submissions provided by their representative on 25 October 2023 the first applicant also claimed that her former boyfriend had in fact assaulted her.
The applicant provided a sworn statement dated 24 October 2023 in which she says neither family approves of her child and she does not believe she would be safe in Malaysia.
Evidence before the Tribunal
The applicant provided the Tribunal with further background about her relationship with her former boyfriend, the father of her child.
She explained that they had gone through a ceremony that was a form of engagement including a meeting between both families, a ring exchange, and a traditional exchange of fruit.
She said the ceremony would usually have been larger and more formal, but they could not proceed with that because her boyfriend’s grandmother fell ill.
She said they were considered to be engaged after that and moved in together.
They had not discussed having children but she understood that he had another year to do before he qualified as [an Occupation] and he did not want to have children at that time.
She said he was shocked when she told him she was pregnant. She said she understands he spoke to his mother who had advised that the child was unlucky and that the pregnancy should be terminated.
She said her fiancée became argumentative and began drinking. He would abuse her verbally and sometimes he was violent towards her.
At one point he locked her in their home for a week and would not let her communicate with anyone else.
She escaped while he was having a shower.
She tried going to her family but they were not supportive. She also tried going to a friend’s house, but her fiancée found her there. He abused her and beat her until her friends and family intervened.
She said they had called the police who attended but who were not prepared to assist. They said it is a family issue.
She said they directed her fiancée to leave, but he did not and they didn’t do anything to make him go. She said he became abusive again and was shouting at her and throwing stones. The police did not do anything to stop him.
She went to [Country] where she was allowed to stay for 30 days without further documentation. She went there to work but her fiancée came to her job and abused her again. She left [Country] immediately, feeling threatened.
She then came to Australia on a tourist visa. She was distressed and wanted to get away from her fiancée, his family and her own family.
S36(2)(a) - REFUGEE CRITERION
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. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of Malaysian nationality. Further, the Tribunal is satisfied that the applicant is outside Malaysia.
The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Malaysia, which is the next part of the definition of “refugee” at 5H(1)(a).
S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
·The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
·There is a real chance that, if the applicant returned to Malaysia she would be persecuted for one or more of the reasons mentioned in paragraph (a), and
·The real chance of persecution relates to all areas of Malaysia.
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.
Findings and Conclusion re Refugee Criterion
The Tribunal is satisfied the applicant fears harm at the hands of her former fiancée and his family if she is returned to Malaysia.
The Tribunal is satisfied that the applicant is a member of a ‘particular social group’ as contemplated by S5J(1)(a), being ‘single mothers who have suffered family violence’.
The Tribunal is satisfied the second applicant fears harm as a member of a particular social group being ‘child of a single mother who is being pursued by her biological father along with her mother’.
The Tribunal is satisfied there is a real chance that, if the applicants returned to Malaysia, they would be persecuted for a reason mentioned in S5J(a) and that they therefore satisfy S5J(b).
However, although the Tribunal accepts the applicant’s evidence that her former fiancée was able to locate her at a friend’s house where she sought refuge and also at her place of employment when she tried to move to [Country], the Tribunal is not satisfied the real chance of persecution relates to all areas of Malaysia.
The Tribunal observes that Malaysia is a nation of about 36 million people and that its largest city, Kuala Lumpur, is a city of over one and a half million people.
The Tribunal is not satisfied the applicant’s former fiancée or his family have the resources or motivation to locate the applicants no matter where in Malaysia they go.
Therefore, the Tribunal is not satisfied that the real chance of persecution relates to all part of Malaysia.
The Tribunal is not satisfied the applicants meet S5J(c) and they do not, therefore, meet the definition of ‘refugee’ for the purposes of the Act.
Conclusion re Refugee Criterion
The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION
Although the applicants have been found not to meet the refugee criterion in s 36(2)(a), they may nevertheless be entitled to the grant of the visa if one or both of them meets s 36(2)(aa) (‘the complementary protection criterion’).
To meet S36(2)(aa) of the Act an applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of being removed to Malaysia there is a real risk that they will suffer significant harm.
The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
S36(2A) provides as follows:
(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.
S5(1) defines “cruel or inhuman treatment or punishment” as follows:
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 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
In considering this application in relation to the refugee criterion, the Tribunal accepted the applicant faces a real chance of serious harm.
The Tribunal found that the serious harm the applicant faces includes physical violence and ill treatment of the first applicant. The Tribunal is satisfied that this serious harm amounts to ‘cruel and unusual treatment or punishment’ as contemplated by S5(1)(a).
As such, the Tribunal is satisfied that the serious harm the applicant faces also satisfies the definition of significant harm for the purposes of the complementary protection criterion.
In MIAC v SZQRB [2013] FCAFC 33, the full Federal Court of Australia held that the test in considering whether a non-citizen faces a “real risk” of significant harm for the purposes of s.36(2)(aa) establishes the same threshold as the “real chance” test in s.36(2)(a) in relation to a well-founded fear of persecution[1].
[1] Paragraphs 245 and 246,
The Tribunal is therefore satisfied that the first applicant faces a real risk of significant harm.
The Tribunal now turns to consideration of what might be described as ‘exclusions’ to the complementary protection criterion under S36(2B).
The Tribunal is not satisfied that it would be reasonable to expect the applicant to relocate to an area of Malaysia where there would not be a real risk that she would suffer significant harm. In making this finding the Tribunal has regard to her evidence that she had already made two efforts to do so but could not avoid her former fiancée. The applicant does not come within S36(2B) (a).
The Tribunal has considered whether the applicant could obtain protection from Malaysia such that there would not be a real risk that she would suffer significant harm.
This was the important issue alive before the Federal Circuit and Family Court.
The Tribunal has regard to the relevant DFAT report[2].
[2] DFAT Country Information Report Malaysia 29 June 2021.
At 5.5 of that report, in relation to the Royal Malaysia Police (RMP) it is stated that;
‘Local and international sources consider RMP to be a professional and effective police force, although the quality of its members responses varies, depending on levels of training, capacity and engagement in corruption.’
At 5.6 the report says;
‘…Malaysians perceive the police as one of the most corrupt institutions in the country…’
At 3.128 the report refers to women’s groups reporting the need for further training and funding for bodies trying to prevent violence against women and saying;
‘…sources report that police commonly return victims of domestic violence to the perpetrator, as they perceive the issues as private family matters.’
The Tribunal observes that this aligns closely with the experience reported by the applicant when the police attended when she was being threatened and assaulted by her former fiancée.
The report does not suggest that enhanced legal protections available to victims of domestic violence have improved matters very much[3].
[3] Ibid 3.127.
The assessment is;
‘While the situation is generally improving, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely. These factors include: ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, lack of awareness of rights, and in 2020-21, the economic and social impacts of COVID – 19 lockdown.’
The Tribunal notes that these comments reflect the fears expressed by the applicant about the problems she will face avoiding her abusive former fiancée and his family if she returns to Malaysia, particularly with her child.
The Tribunal is not satisfied that the protection she could obtain from the Malaysian authorities is such that there would not be a real risk the applicant will suffer significant harm.
The Tribunal is not satisfied the applicant comes within S36(2B)(b).
The Tribunal is not satisfied the real risk faced by the applicant is one faced by the population of Malaysia generally. The applicant does not come within S36(2B)(c).
The Tribunal is satisfied that the applicant is a non citizen in Australia in respect of whom Australia has protection obligations because there is substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Malaysia there is a real risk she will suffer significant harm.
The first applicant therefore comes within S36(2)(aa).
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal is satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Second Applicant
The Tribunal is satisfied that he second applicant is the daughter of the first applicant and is therefore a member of the same family unit as the first applicant for the purposes of S36(2)(c) of the Act.
For the reasons set out above the Tribunal is satisfied that the second applicant comes within S36(2)(c)(i) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies 36(2)(aa) of the Migration Act; and
(ii) that the other applicant satisfies 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Mark O'Loughlin
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 1364

2 April 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

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