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

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).
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.
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
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…

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 2304732 (Refugee)

Details

AGLC: 2304732 (Refugee) [2024] AATA 4203
Case: [2024] AATA 4203
Decision Date: 7 August 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by two applicants, who are nationals of Singapore. The applicants claimed to fear persecution from the first applicant's former husband and the second applicant's father, [Mr A], due to his history of severe domestic violence. The applicants asserted that they were victims of physical and psychological abuse over an extended period, and that due to [Mr A]'s persistent threats and the perceived inadequacies of protection mechanisms in Singapore, they faced a real risk of significant harm if returned. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the court was whether the applicants had established a well-founded fear of persecution, or alternatively, whether they met the criteria for complementary protection under section 36(2)(aa) of the Migration Act 1958 (Cth). This involved determining if there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Singapore, the applicants faced a real risk of suffering significant harm. The court was required to assess the credibility of the applicants' claims of domestic violence, the effectiveness of Singaporean legal and social protections against such violence, and the likelihood of [Mr A] continuing his abusive behaviour and harassment upon their return.

The court found that both applicants provided credible accounts of the abuse perpetrated by [Mr A], supported by documentary evidence and the psychiatric conditions of their older sons. While acknowledging the existence of legal protections in Singapore, such as the Women's Charter and Personal Protection Orders, the court considered the applicants' submissions regarding their potential inadequacy in this specific case, particularly given [Mr A]'s history and persistence. The court was willing to accept that [Mr A]'s behaviour in Australia was a continuation of his historical abuse in Singapore, noting that Australian police reports corroborated the applicants' claims of threats and harassment. The court concluded that the applicants had a well-founded fear of persecution.

Consequently, the Administrative Appeals Tribunal's decision was remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 3rd and 4th 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 3rd and 2nd 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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.ASESSMENT 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. 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 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 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.