2304732 (Refugee)

[2024] AATA 4203

2304732 (Refugee) [2024] AATA 4203 (7 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kristin Louise Robson (MARN: 1277227)

CASE NUMBER:  2304732

COUNTRY OF REFERENCE:                   Singapore

MEMBER:Catherine Wall

DATE:7 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(aa) of the Migration Act.

Statement made on 07 August 2024 at 9:44am

CATCHWORDS

REFUGEE – Protection Visa – Singapore – fears from her former husband – victims of domestic violence – a member of particular social group – women in Singapore – have experienced a range of physical and psychological abuses over an extended period – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 46, 65, 499

Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 March 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first applicant, [name], is a [age] year old citizen of Singapore. The second applicant [is] her [age] year old son, also a citizen of Singapore. The applicants last arrived in Australia on [date] December 2016 and applied for the visas on 27 December 2021. The delegate refused to grant the visas on the basis that they are not owed protection by Australia.

3. The applicants appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. They were represented in relation to the review by Ms Kristen Robson.

   CLAIMS AND EVIDENCE

4. The applicants’ claims in the visa application are summarised as follows:

   The first applicant married [Mr A] in 1997 in Singapore and they had 4 sons. Throughout the 22 year marriage [Mr A] was physically and emotionally abusive towards the first applicant and his children. He used vulgarities and degrading remarks towards them and beat them regularly.

   The abuse started when the first applicant was pregnant with her first child. He raped her before the birth of her 3^rd and 4^th child. He refused to work and relied on the first applicant’s income. He lied about almost everything. Her children tried to protect her when he physically abused her and he threatened the children with a knife.

   The first applicant made a police report but no action was taken and no support provided. Police told them to solve it within the family. She tried to move to a friend’s house for safety but her husband found her.

   In 2016 the first applicant and her sons moved to Australia to escape the violence. Her sons all attended school in Australia while she held a guardian visa subclass 590.

   In May 2021 [Mr A] beat her 3^rd and 2^nd son until they were hospitalised. In November 2021 he threatened the first applicant to ‘die together with us’.

   The second applicant claimed that he witnessed his father abusing his mother for many years. His father had affairs with other women and would vent his anger on the family when things did not go his way. He described his father as mentally unstable and impulsive. If anyone in the family argued with him he would use a cane or knife to threaten them. His second brother bore most of the violence and his body was always covered with injuries. He fears that he will be murdered by his father if he returns to Singapore. His father has sent many emails threatening to kill them. He flew to Australia and banged on their doors and windows.

   Singapore is a small country where one can be located easily. His father has harassed their relatives to determine his family’s whereabouts. Relocation is not possible.

5. Prior to the Tribunal hearing the applicants submitted a statement addressing the delegate’s findings. While acknowledging that the Singapore Women’s Charter and Personal Protection Orders (PPOs) provide some protection for victims of family violence in Singapore, they argue that these measures may not be sufficient to ensure their safety given [Mr A]’s history of abuse and harassment. They supplied references to documented cases of failures in the system and claimed that the risk of significant harm remains real.

6. They also claimed that the social stigma surrounding family violence in Singapore may result in a lack of support and understanding from the community, law enforcement and even family members. The inadequacies of family violence protect in measures in Singapore, the likelihood of increased violence from [Mr A] and the psychological trauma they may experience upon return, all contribute to the risk of harm.

7. The applicants submit that [Mr A] travelled to Melbourne several times since 2016 to find them. In October 2022 he located their home and stalked them for 5 consecutive days. This was reported to police several times and he was arrested and fined, however he continued to harass them via phone and email. He also visited their neighbours who advised the applicants to seek protection orders.

8. The first applicant’s 3 older sons returned to Singapore from Australia to undertake their national service. Since living in Singapore they have been physically and mentally abused by their father. The second applicant was informed that his father had sexually abused his brother.

9. The first applicant stated that, despite many several reports to the Singapore police over the years, she was recently informed by the police that they cannot locate the reports and she was advised to make a new report.

10. In support of their review application, the applicants submitted the following to the Tribunal.

    a.Family Violence Final Intervention Order dated [date] March 2022 issued by the Magistrates Court of Victoria which names [Mr A] as the perpetrator.

    b.A letter from Victoria Police to the first applicant dated [June] 2022 which advises her that [Mr A] was found guilty at Melbourne Magistrates Court on [date] October 2022 and sentenced to conviction and penalty of $2,500. The letter advises her of supports available and refers to the principles of the Victims’ Charter.

    c.A Family Violence Safety Notice (FVSN) which states that the respondent, [Mr A], travelled form Singapore to Australia in an attempt to locate his son as he wants him to return to Singapore to complete military service. On 26 October 2022 [Mr A] approached the second applicant, who did not engage with him, so [Mr A] returned to his vehicle and proceeded to drive towards the applicants. The second applicant had to push his mother out of the way of the vehicle. Police believe that a FVSN is necessary to protect the safety of the applicants as [Mr A] has continued to attempt to locate them.

    d.A statement to police from the first applicant dated 30 October 2022 in Melbourne in which she reports the receipt of an email and phone calls which she believes are from [Mr A], contrary to an Intervention Order.

    e.A Singapore Police Force report dated [March] 2023 which details the first applicant’s claim that she made several phone calls to police between 1999 and 2002 advising that she and her sons were abused by [Mr A]. She also claims that she sought help through a police report in Singapore earlier that year however the officer said it wasn’t sufficient to apprehend [Mr A].

    f.A Singapore Police Force Report dated [December] 2012 made by [Mr B]. In the report he refers to his father’s ongoing threats and harassment for money. He said that in 2019 his father demanded he give him his national service allowance and threatened to beat his younger brother and kick him out of the house if the allowance was not received. He states that he and his brother have depression and anxiety due to their father’s abuse.

    g.A statement from [Ms C], Family Violence Practitioner at [an organisation]. [Ms C] advises that the first applicant was a client at the centre between December 2021 and July 2022.

    h.A number of emails and electronic messages sent to the first applicant with threatening content, some of which include images or references to the applicants’ work or social activities which suggest surveillance. Examples include:

    -An email dated 3 December 2023 from [Mr A] to [the applicant] which includes the threat “I now seek any revenge on the way you all accuse me and frame me. I will let karma settle you all. Up to you to decide. If no call from you before 11am I have a [nationality] and Australian friend in Melbourne to let me know your location”.

    -Another email sent on 24 December 2023 states ‘All this year what you sow will reap on you all’.

    -An email dated 1 January 2024 contains an image of text “Karma is extremely efficient, if one is extremely patient’. The author says “lets see who died first in 2024. [Mr B], [Mr D] or you or me”.

    -An email from [Mr A] to [the applicant] dated 26 January 2024 in which the author states that he knows what events are coming up, if she disturbs his peace she will pay for it, he will make sure he returns her to hell. If she involves the children she will pay for it. “Wait for surprise karma soon”.

    i.A written statement from [witnesses] dated 27 February 2024. They state that the applicants are neighbours in Melbourne. They report that they had a visit from a man in December 2021 who claimed he was the second applicant’s brother and was looking for him. They denied knowledge of the second applicant’s whereabouts. They observed the same person sitting in a car in their street on 18^th December 2021. Later that evening this person was banging on their door screaming at them and asking about the applicants. He also banged on the door of another neighbour. It was frightening. They did not see him again and they are sad that a mother and son need to hide from such an aggressive person.

    j.A written statement from the first applicant dated 28 October 2022 which details incidents between 2022 and 2023 when [Mr A] attempted to harass the applicants at their Melbourne home.

    k.A written statement from the second applicant dated 28 October 2022 which details [Mr A]’s harassment in October 2022 at their home.

    Evidence at hearing

11. The first applicant said that she married [Mr A] in 1997 and they had 4 sons: [Mr B] aged [age] years, [Mr D] aged [age] years, [Mr E] aged [age] years and [the second applicant] aged [age] years. She described how, over the next 22 years of her marriage she experienced relentless and serious physical, sexual and emotional abuse from her husband. He refused to work so she supported the family. He controlled everything in the family including their finances and their social activities. She said that she told her mother about the abuse but her mother discouraged her from taking any action. She has 3 brothers who were aware of the abuse but considered it to be personal business. She called police a few times however they did not take action so she gave up trying to report the violence. She said that she tried to leave her husband but he monitored her activities so closely that it was impossible.

12. The first applicant had completed a university degree at [an Australian university] in 1996 so was familiar with Australia. In December 2016 the whole family travelled to Australia together as the first applicant arranged for her sons to attend school in Australia. Her husband was initially issued with a student guardian visa however when he returned to Singapore temporarily she was granted a student guardian visa. While her husband was away from Australia she moved to a different residence with her sons in an attempt to hide from her husband. This was initially successful and he was unable to locate them between March 2017 and 2021. During that time her 3 older sons returned to Singapore to do their national service. Although they have lived with their maternal grandmother since returning to Singapore, the Tribunal was told that their father has continued to threaten and abuse them. The following medical reports confirm that each of them has a serious mental health condition as a result of family trauma:

    oA report from [a] Psychiatrist, dated 4 April 2019, states that [Mr B] suffers form a major depressive disorder and Borderline Personality Disorder. It states that his condition stems from a difficult childhood and complicated family dynamics. He is unable to cope and adapt to military life and it is recommended that he be discharged/exempt from national service.

    oA report from a Hospital Emergency Services dated 27 January 2020 states that [Mr D] suffers from Obsessive Compulsive disorder and Adjustment Disorder secondary to family stressors. The [report] advises that [Mr D] be closely monitored.

    oA report from [a] Consultant Psychiatrist, dated 30 April 2021 states that [Mr E] suffers from persistent low mood, insomnia, anger and suicidal ideations. These result from significant family issues and an abusive father. He is assessed as not fit to undertake national service.

13. The applicants applied for the protection visa on 27 December 2021. When asked why they waited so long to seek protection, the first applicant said that she did not know about protection visas until a neighbour explained this to her and encouraged her to seek support. For the first few years she focussed on keeping safe and was so worried about her sons. She initially used her savings to support her family in Australia and then her brothers and mother provided her with financial support. She now works with [a] business in Melbourne.

14. The Tribunal heard that the applicant last saw [Mr A] in October-November 2022 when he located their home and stalked them for days until arrested by the police. Since then he has continued to send them emails and has tried to phone them. They have blocked him, they have changed their email and phone numbers, yet he seems to manage to track them down.

15. When asked about her health, the first applicant said that she is always stressed but she must keep going for the sake of her sons. She has not sought treatment for any mental health condition and has not been diagnosed with any mental health condition.

16. The first applicant was adamant that [Mr A] is determined to seek revenge and will never stop trying to hurt her and her sons, as evidenced by the threats in his recent emails. He visited her mother in Singapore as recently as 3 weeks ago to harass her about the applicants’ whereabouts. She believes that he will kill her if she returns to Singapore. She said that she cannot hide from him as Singapore is a small place and he knows how to find people.

17. The second applicant’s account of his father’s abuse and ongoing surveillance and threats was consistent with his mother’s evidence. He expressed fear at the thought of returning to Singapore as he believes that his father will find him and abuse him. He said that for the first time in his life he feels ‘normal’ as his father is in another country. He is always anxious, however, about his father learning about his location so he has asked the university and his friends to never to disclose his name or image on any material.

    CRITERIA FOR A PROTECTION VISA

18. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

19. 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.

20. 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).

21. 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.

22. 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

23. 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.

    ASESSMENT

24. Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[1]

    Identity

    [1] (1999) 197 CLR 510.

25. The applicants’ nationality is not an issue. They travelled to Australia on valid Singapore passports and have consistently stated in documentation that they are nationals of Singapore. The delegate did not indicate any concerns about the applicants’ identity or nationality. Therefore, I am satisfied the applicants are nationals of Singapore and I have assess their claims against Singapore as their receiving country.

    Credibility

26. I found that both applicants gave credible accounts of their life in Singapore and their experiences of abuse perpetrated by [Mr A]. They both described [Mr A] as cruel, volatile and mentally unstable. They believe he is capable of extreme violence and that he will go to any lengths to make them pay for leaving him. They have submitted a range of documentary material that supports their claims.

    Claims of family violence

1. There is little independent evidence of the violence perpetrated by [Mr A] while the applicants lived in Singapore. There are no police reports detailing the first applicant’s requests for help. I have had regard to the first applicant’s claim that the police are unable to locate the reports as they changed their IT systems several years ago and require a report number in order to locate historical records. I consider this surprising given the efficiency of Singapore administrative systems. Despite this concern, the Australian police reports corroborate the applicants’ claims of [Mr A]’s threats and harassment in Australia and I am willing to accept that his behaviour in Australia is a continuation of his historical abuse of the family in Singapore. I find that the older sons’ psychiatric conditions are clear evidence of family violence occurring throughout their childhood.

2. It is evident that, since the applicants moved to Australia in December 2016, [Mr A] has invested considerable effort in trying to locate them. Movement records indicate that he visited Australia 5 times between December 2016 and December 2021. Statements by the applicants, their neighbours and police attest to [Mr A]’s aggression and determination to hurt the applicants. He has failed to comply with intervention orders.

3. Since leaving Australia in November 2022 [Mr A] has continued to attempt to intimidate the applicants via phone and email and continues to harass the first applicant’s family in Singapore. The first applicant claimed in a written statement that [Mr A] is banned from entering Australia. Her representative was unable to verify this, so it remains unclear whether he will be able to re-enter the country in the future. Even so, the applicants state that they feel safer in Australia given the effective police protection provided each time they reported his threats.

4. The emails sent to the first applicant from [Mr A] over the past year contain serious threats to life. Given his abusive history and his disregard for intervention orders, I give significant weight to these threats.

   Country information

5. The US Department of State country report 2023 advises that rape is a crime in Singapore, with maximum penalties of 20 years imprisonment and possible caning. Acts of domestic violence are crimes and penalties range form fines to sentences of up to 24 years imprisonment. The following protections were detailed:

   Survivors could also obtain court orders restraining the respondent and barring a spouse or former spouse from the survivor’s home until the court was satisfied the spouse had ceased aggressive behaviour. The government effectively enforced the laws on rape and domestic violence. 

   In July parliament amended the Women’s Charter to strengthen protections for survivors of domestic violence. The bill updated the definition of domestic violence to include emotional and psychological abuse, such as coercive control, besides physical and sexual abuse. It introduced two new types of protection orders which prohibited a perpetrator from being in the vicinity of or communicating with the survivor. It also lowered the eligible age to apply for a protection order from 21 to 18. The law further strengthened the government’s ability to intervene and protect survivors through so called “protectors.” Protectors were allowed to enter homes to assess and obtain information, issue emergency orders to protect survivors in high-risk settings, apply for protection orders on behalf of the survivors, and apply to the court to remove survivors from their home for their safety if they did not take steps to protect themselves, or to initiate electronic monitoring of high-risk perpetrators. The law increased fines for family violence-related offenses and increased the maximum prison term to 12 months from six months.

   In April police launched a new Sexual Crime and Family Violence Command after a five-year high of 2,549 sexual assault cases were reported in 2022.[2]

   [2] US Department of State 2023 Country Reports on Human Rights Practices: Singapore. Part 6.

6. The Straits Times reported on 4 July 2023 that the Women’s Charter (Family Violence and Other Matters) Amendment Bill, which was passed by Parliament on Wednesday, contains provisions to empower the court to better protect victims, and to strengthen the rehabilitation of abusers. Noting that family violence is a complex issue that can take various forms, Minister of State for Social and Family Development, Sun Xueling, said that the Bill will update its existing definition of family violence to make clear that it includes physical, sexual, emotional and psychological abuse. She pointed out that there is no single cause of family violence.[3]

   The reasons for committing violence could be deep-seated such as the perpetrators themselves being abused, or witnessing violence in their own homes as children, or an inability to cope with stressors like unemployment, financial difficulties or other issues.

   Family violence is harder to detect as it often happens behind closed doors, she added. “Survivors may hesitate to seek help due to shame, stigma, fear of breaking up their family and the perception that family violence is a private matter.” “Similarly, individuals who observe family violence may remain as passive bystanders because they also consider it a private matter or are concerned about breaking up the family.” The amendments to the Bill will empower family violence survivors to better protect themselves, through provisions such as allowing younger survivors to apply for a PPO on their own.

   [3] Coercive, controlling behaviour to be included under new laws protecting family violence victims | The Straits Times

7. The Singapore Police Force states that it takes a serious view of such cases. The Police will continue to take tough enforcement action against those who abuse their family members, and also enhance collaboration with social service agencies to combat family violence.[4]

   [4] Enhancing Police’s Response To Combat Family Violence the applicants satisfy the refugee criteria

   The first applicant

8. In considering whether the harm the first applicant fears from her former husband is for reasons of her race, religion, nationality, membership of a particular social group or political opinion, I consider that it is for the reason of her gender. While family violence can affect a person irrespective of gender, it is widely acknowledged that women are significantly more likely than men to experience family violence.[5] In this case the gendered nature of the violence directed at the applicant by her former husband has its genesis in beliefs about the role and status of women and the perceived right of male members of the family to dominate and control the applicant because of her gender.

   [5] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)

9. For these reasons, the Tribunal considers that the harm the applicant fears from [Mr A] is directed at her for the reason of her membership of the particular social group ‘women in Singapore’. I consider that the group of ‘women in Singapore’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution. Therefore, I am satisfied that the harm she fears is for reason of her membership of a particular social group for the purpose of s 5J(1)(a).

10. I do not however accept that the real chance of persecution relates to all areas of Singapore as required by s 5J(1)(c).

    The second applicant

11. On the evidence before me I am not satisfied that the harm the second applicant fears from his father is for reasons of his race, religion, nationality, membership of a particular social group or political opinion. Accordingly, I do not accept that the harm he fears is for the purpose of s 5J(1)(a).

    Do the applicants satisfy the complementary protection criteria?

12. 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’).

13. The Complementary Protection Guidelines issued by the Department[6] advise that decision makers should keep in mind that, although a high level of severity is required, any particular vulnerabilities of the applicant must also be taken into account. These may include their gender, age, state of health (mental and physical), but also extend to the exploitation of phobias which the applicant is known to suffer, or cultural taboos. Decision makers must also consider the particular context of the claims made, for example the nature, context and duration of the treatment, and the physical and mental effects which resulted or would result.

    [6] Department of Home Affairs, Complementary Protection Guidelines, as re-issued 29 February 2020.

14. The Guidelines also note that a series of acts which may not individually reach the threshold for torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment may, cumulatively, reach the required threshold.  This is particularly relevant to the applicants’ circumstances. They have experienced a range of physical and psychological abuses over an extended period, some of which individually might not have been ‘harmful’ but the cumulative impact on the applicants has clearly been traumatic. They have witnessed their loved ones being abused and have felt powerless to protect them.

15. I give significant weight to the individual medical reports pertaining to [Mr B], [Mr D] and [Mr E] which state that the three men have serious psychological conditions as a result of family trauma. Under the Enlistment Act, male Singapore citizens and permanent residents are liable for national service. They are required to serve 2 years full-time when they reach the age of 18.[7] As national service obligations are strictly enforced in Singapore, I am satisfied that the psychiatrists’ assessments would be thorough. While these young men are not applicants in this matter, I consider that their psychological conditions are credible evidence of the abuse perpetrated by [Mr A] over many years. The reports support the applicants’ claims that they have been terrorised by [Mr A] and fear that the persecution will continue if they return to Singapore.

    [7] Singapore National Service website, OneNS | About Us

16. The applicants’ claims are also supported by police and court documentation which details [Mr A]’s family violence acts in Australia, as well as their neighbour’s account of [Mr A]’s aggressive behaviour.

17. The documentary evidence of [Mr A]’s threats on email, text and other social media platforms is disturbing. I am satisfied that he will not accept the family breakdown and is determined to punish his wife and sons. He has made several references to ending their lives.

18. Having considered the totality of the evidence before me I make the following findings:

    I accept that the first applicant was married to [Mr A] for approximately 22 years and that they have 4 sons, including the second [applicant].

    I accept that Mr [A] abused the first applicant physically, psychologically, sexually and financially throughout the marriage.

    I accept that [Mr A] physically and psychologically abused his 4 sons.

    I accept that the first applicant attempted to leave the marriage on a number of occasions while in Singapore and that she sought police help on several occasions.

    I accept that the first applicant sought safety in Australia with her sons.

    I accept that [Mr A] travelled to Australia on several occasions to try to locate the applicants.

    I accept that the applicants reported [Mr A]’s threats and harassment to Australian police, that Intervention Orders were issued and that [Mr A] was arrested, convicted and fined for his family violence violations.

    I accept that [Mr A] continues to make serious threats via telephone and email and social media which indicate that he is determined to harm the applicants.

    I accept that the applicants fear that they will be harmed and possibly killed by [Mr A] if they return to Singapore.

19. ‘Cruel or inhuman treatment or punishment’ is defined in s 5(1) of the Act as 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;

20. I am satisfied that the applicants have experienced cruel and inhuman treatment perpetrated by [Mr A]. I am also satisfied that, if they return to Singapore, there is a real risk that they will suffer significant harm.

21. Section 36(2B) qualifies s 36(2)(aa) by setting out three circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country. The circumstances are:

    ·where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;

    ·where the applicant 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

    ·the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. 

22. It can be argued that the harm faced by the applicants is localised given that the perpetrator is [Mr A] and the subjects of his abuse are his wife and sons. The applicants have claimed that it is not possible for them to relocate to a place of safety in Singapore as it is a small country and [Mr A] has demonstrated that he will find them wherever they go. I find that [Mr A] spent considerable time and resources locating the applicants in Australia and proceeded to threaten and harass them when he did locate them, despite the legal protections available in Australia. His recent threats indicate that he is not willing to cease his persecution of the family, regardless of where they live. While I consider it possible that the applicants could try to relocate in Singapore without [Mr A]’s knowledge, the available evidence indicates that he would pursue them and they would have to move each time he located them. I find that this constant threat of discovery and the requirement to be constantly mobile would be unreasonable and would expose them to further pain and suffering. Accordingly, I do not accept that there is an area of Singapore where there would not be a real risk that they would suffer significant harm from [Mr A]. I therefore do not accept that the real risk of harm is localised. s 36(2B)(a).

23. I have considered whether the applicants could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm’: s 36(2B)(b).  In MIAC v MZYYL the Full Federal Court held that, to satisfy s 36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[8]

    [8] MIAC v MZYYL (2012) 207 FCR 211 at [40].

24. According to the Complementary Protection Guidelines[9] the fact that a receiving state has generally functioning laws and standard protections in place that are available to the general community is one element that may be taken into account in determining whether a person faces a real and personal risk of significant harm, but is not, without more, determinative of the assessment. An individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place. The mere existence of those protective measures only shows availability of the measures. It does not demonstrate that the person could obtain such protection. Where claims of domestic violence are raised, consideration must be given not only to whether or not laws proscribing domestic violence are enacted in the home country, but also whether those laws will be effectively implemented so as to reduce the risk of significant harm to something less than real.

    [9] Department of Home Affairs, Complementary Protection Guidelines, section 3.6.2, as re-issued 29 February 2020.

25. I accept, on the basis of country information, that Singapore has an effective police force and that there are sound legal protections for victims of family violence. I acknowledge that Singaporean authorities have strengthened the family violence laws in recent years, that there are a number of community awareness programs in place and that various services offer support to victims of family violence. I am also mindful that the applicants’ experience of family violence in Singapore proceeded the recent improvements to family violence. protections. I have therefore considered whether, if returned to Singapore in the near or foreseeable future, the applicants will be able to access effective protection.

26. The available evidence demonstrates that [Mr A] has no regard for the law. I find that he considers it his right to control and abuse his family members and that he believes that he is not accountable to anyone for his actions.  In the context of his abusive past, I find that his current threats must be taken very seriously. I am not satisfied that legal protections in Singapore can be or will be effectively implemented so as to reduce the risk of significant harm to something less than real. Accordingly, I do not accept that the applicants could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm: s 36(2B)(b).

27. I do not find that the real risk is one faced by the population generally and is not faced by the applicant personally’: s 36(2B)(c). The Federal Court has held that the natural and ordinary meaning of this provision requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[10] I am satisfied that the risk of harm faced by the applicants is specific to them as members of [Mr A]’s family.

    [10] SZSPT v MIBP [2014] FCA 1245 at [11]–[13]. SZSRY v MIBP [2013] FCCA 1284 at [43] (risk must be faced ‘in light of [the applicant’s] specific circumstances’).

28. Having reviewed and considered all information before me, I find that there is no evidence which indicates that the applicants have a right to enter and reside in a country other than their home country of Singapore. Therefore, I find that s.36(3) of the Act does not apply to the applicants in this case.

29. Having considered the applicants’ specific circumstances, I find that the applicants satisfy s 36(2)(aa) of the Migration Act.

    CONCLUSIONS

30. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(aa).

    DECISION

31. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(aa) of the Migration Act.

    Catherine Wall
    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.

    …