2302768 (Refugee) - [2024] AATA 2618

2302768 (Refugee) [2024] AATA 2618 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1824188
2302768

COUNTRY OF REFERENCE: Malaysia
MEMBER:Bryn Butler
DATE:8 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas.

Statement made on 08 April 2024 at 10:28am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – women – victim of family violence – fear of former husband – physical assault – husband’s drug addiction – fear of killing – extortion – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
CAR15 v MIBP (2019) 272 FCR 131
FCS17 v MHA (2020) 276 FCR 644
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

The applicants are [an age]-year old woman, [Applicant 1], and her [age]-year old daughter, [Applicant 2]. They are both citizens of Malaysia, who are from the state of Sarawak. This is a review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Protection visa application
[Applicant 1] arrived in Australia as the holder of an electronic travel authority in February 2018. She applied for the protection visa on 10 May 2018. The delegate refused [Applicant 1’s] visa application on 31 July 2018.
[Applicant 2] arrived in Australia as the holder of an electronic travel authority in February 2020 and applied for the protection visa on 12 April 2020. The delegate refused [Applicant 2’s] visa application on 15 February 2023.
In [Applicant 1’s] visa application, she set out her claims for protection, and in a statement to the delegate dated 8 May 2018, which are summarised as follows:
·She was abused by her ex-husband. She suffered family violence, including emotional, financial and physical abuse. Her ex-husband beat her for not giving him money to buy drugs.
·She married her ex-husband, [who worked for Employer 1], in 2006 and divorced him in 2015. The abuse continued after her divorce from her ex-husband.
·She moved to her sister’s house in Kuala Lumpur but he found her there, and tried to harm her sister and her family for helping her.
·She lives in the same area as her ex-husband and he would ask her for money, and beat her if she doesn’t give him money. It doesn’t matter where she is.
·She said she is an ordinary woman from a typical family background with school level education.
·She has nowhere to go in Malaysia, except her sister’s house in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2302768 (Refugee)

Details

AGLC: 2302768 (Refugee) [2024] AATA 2618
Case: [2024] AATA 2618
Decision Date: 8 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa applications of Applicant 1 and her adopted daughter, Applicant 2. The applicants sought review of decisions not to grant them protection visas. The core of the dispute concerned whether the applicants met the criteria for a protection visa, either as refugees or through complementary protection, based on Applicant 1's fear of her former husband.

The legal issues before the Tribunal were whether Applicant 1 held a well-founded fear of persecution for reasons of membership of a particular social group, and whether Australia had protection obligations towards either applicant under the refugee or complementary protection criteria. Specifically, the Tribunal had to determine if Applicant 1's fear of her former husband, stemming from his alleged drug addiction, physical assaults, and threats of killing and extortion, constituted a well-founded fear of persecution for reasons of membership in a particular social group, and if effective protection measures were available in Malaysia.

The Tribunal considered the applicants' personal backgrounds and the relevant provisions of the Migration Act 1958, including definitions of "refugee," "well-founded fear of persecution," and "particular social group." The Tribunal noted that Applicant 1 had divorced her husband in 2015 and had been living in Australia since 2018, working on farms. The Tribunal also noted that Applicant 2 had lived with various relatives after the divorce before coming to Australia. The Tribunal concluded that there was no suggestion that either applicant satisfied the criteria for a protection visa, including the criterion relating to membership of the same family unit as a person who holds a protection visa.

Accordingly, the Tribunal affirmed the decisions not to grant the applicants protection visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 any of the applicants is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion. For the following reasons, I have concluded that the decision under review should be affirmed.[Applicant 1’s] personal background [Applicant 1] said that grew up in the city of Sibu in Sarawak. Her mother lives in Sibu on her own and her father has passed away. She has [other family members] who both live in Kuala Lumpur. She completed the [school grade], and then left school to help her parents on their farm. She left Sibu in her late teens to work in a [shop] and later returned to the farm to help her parents. Before she got married, she stated she worked in Kuala Lumpur in a [business 2], and that she wasn’t sure how long she worked there for before she got married. She said she quit when she got married. She later clarified that she hadn’t worked in Kuala Lumpur, and she had lived in the state of Pahang. She said she met her ex-husband in Kuantan, Pahang in 2005. He [worked for Employer 1], and based in Kuantan but was originally from Sarawak. She said that a friend of hers gave him her number, that she and her ex-husband messaged each other, and then married in 2006. She said she stopped working because she felt that he could take care of her. She lived with him in the Kuantan [employer accommodation]. He was later [another site] near Kuching in Sarawak and she went there with him. She said that the problems in their relationship arose when they were still in Kuantan. She and her ex-husband formally adopted their daughter, the other applicant, [Applicant 2] and have provided evidence of the adoption to the Tribunal. She divorced her husband in 2015, and left [their accommodation] and moved into rental accommodation in Kuching, Sarawak. She worked at a [shopping centre] to support herself and her daughter (her daughter lived with relatives for periods, discussed below). [Applicant 1] came to Australia in 2018 and has lived in [Town 1] since that time. She has worked on farms near [Town 1].[Applicant 2’s] personal background [Applicant 2] was adopted by [Applicant 1] and her ex-husband when she was a baby. She is their adopted daughter. She grew up with her adoptive parents. She recalls her parents fighting over money when she was growing up. After her parents’ divorce, she lived with her mother, then her father’s family and then went to live with her maternal uncle in Kuala Lumpur until she came to Australia in 2020. She travelled to Australia with her mother’s friend. I asked her whether she had lived with her grandmother for some time (as indicated in correspondence to the Department), but wasn’t sure when this was.

Decision

Reasons for decision

There is no suggestion that either applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decisions not to grant the applicants protection visas.Bryn ButlerMemberATTACHMENT - 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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