1615513 (Refugee)

[2017] AATA 2874

1615513 (Refugee) [2017] AATA 2874 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615513

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Brendan Darcy

DATE:28 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 September 2017 at 2:07pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Divorcé without child custody– Ethnicity and religion – Member of a minority group – Member of bumiputera – Racial and religious discrimination in promotion – Family breakdown and indebtedness – Economic circumstances

LEGISLATION
Migration Act 11958, ss 5H-LA, 36, 65,91R, 425, 499
Migration Regulations 1994, Schedule 2

CASES
MZZIA v MIBP [2014] FCCA 717

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 Immigration [in] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of the Federation of Malaysia (Malaysia), applied for the visa [in] May 2016. The delegate refused to grant the visa on the basis that the applicant’s weak written claims were not accepted or that he will be denied state protection if he returns to Malaysia.   

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

4. 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.

5. 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 themself 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).

6. 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.  

7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

9. In this case, the Tribunal has considered whether the applicant will face a real chance of serious for a reason mentioned in s.5J(1)(a) or a real risk of significant harm if he were to return to his home state in Malaysia or Malaysia more generally.

10. The following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The applicant claimed to be born [on date] in Sandakan in the Malaysian state of Sabah and claimed to be a citizen of the Federation of Malaysia.

12. A certified copy of the applicant’s valid Malaysian passport issued by a relevant authority in Malaysia.

13. The applicant arrived in Australia [in] March 2016 while holding a [temporary] visa. [In] May 2016, the applicant submitted an application for a class XA subclass 866 protection visa and was granted an associated bridging visa.

14. The applicant’s written, albeit very limited, claims are outlined in his submitted 866 forms which are on the departmental [file]. A summary of those claims are below:

    ·     The applicant claimed he worked at [a government department] of Kota Kinabalu, the capital city of Sabah, on a permanent basis for [a number of] years;

    ·     The applicant claimed it was too difficult to gain promotion; that he was confident that with his level of education and work experience he deserved promotion; and that he was very disappointed by the fate that befell him;

    ·     The applicant claimed he fully expected to be promoted by there was ‘a bit of racism’ in his office;

    ·     The applicant claimed that he has worked for nothing and has huge family responsibilities and that he chose Australia because it is peaceful, quiet and multiracial.

    ·     The appellant claimed that he feared returning to Malaysia because he would become jobless; that his future was dark due to the bad economy and the high cost of living. The applicant further claimed he may incur debt because he will not have enough money to support his family;

    ·     The applicant claimed he did not seek assistance in relocating to another part of Malaysia as everyone is subject to the same law and nothing will change unless the government improves the currency, the policies of the economy and politics.

15. According to the applicant’s 866C form, the applicant can speak, read and write Malay and English; that his ethnicity is Tidong; and that his religion is Islam. The applicant claimed that he was married [in] April 2009 and divorced [in] March 2015. There is no indication in his 866 forms that he has any children.

16. [In] September 2016, a delegate on behalf of the Minister refused the applicant a protection visa.

17. On 23 September 2016, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal. No decision record was attached to this review application.

18. On 25 August 2017, the applicant attended a scheduled hearing. He was assisted by an interpreter in the Bahasa Malaysian and English languages.

19. Post hearing submission On 1 September 2017, the applicant submitted a post hearing submission which included (unsourced) country information about Malaysia’s Islamic divorce and custody laws and practices. Relevant to the issues raised during the hearing regarding the custody of the applicant’s [children] is that the moth is given primary right to the physical custody (hadanah) of her children and the father has the primary guardianship rights of children as well as the responsibilities of maintenance. A court may modify guardianship and custody if relevant parties breach conditions.[1]

    [1] AAT Folio 15-16

20. No other documents of submissions were provided to the Tribunal, right up to the time of making his decision.

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of nationality

21. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department with his protection visa application, as well as a copy of his national identity card and driver’s licence issued by Malaysia at the Tribunal.  Based on this information and with no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.

    Third country protection

22. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility Findings 

23. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

24. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

25. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

    Applicant’s Accepted Personal Circumstances

26. During the scheduled hearing, the applicant provided the Tribunal with his own personal background, including his family composition, his marital status, his cultural and religious identity as well as his educational, work and travel histories.

27. Based on the overall credibility finding in favour  of the applicant, the Tribunal accepts the following about his background:

28. The Tribunal accepts that the applicant was born in [year] in Sandakan in the Malaysian state of Sabah as claimed. With regards to the applicant’s family composition, the Tribunal accepts that the applicant’s mother and father live in Sabah and that [his] brothers live and work in Sabah and that [his] sisters also work in Sabah.

29. The Tribunal accepts that the applicant’s travel history which includes that he moved to [another country] with his parents while his father studied at [a university] between 1989 and 1995; that he visited [a different country] after he completed [schooling]; and that he visited [a third country] for holiday purposes in the past.

30. Regarding the ethnicity and the religion of the applicant, he claimed in both his written and oral claims that he belonged to [a minority group]. [Details deleted]. He said that the [group] had their own language which his parents spoke at home but that he was not personally proficient in that tongue but he could speak, read and write Bahasa Malaysian and English. The applicant claimed most members were Islamic and that he shared the same religion.  The Tribunal accepts that the applicant’s ethnicity is [a minority group]; that his religion is Islam; and that he speaks mostly Bahasa Malaysian and English and only a little [minority group language].

31. The Tribunal accepts that the applicant was married to [his ex-wife] in 2009; that the applicant has [several children] arising from this marriage and that he is was divorced from her in 2015.

32. During the scheduled hearing, the applicant claimed that his spousal relationship broke down after several years of the couple fighting and that he left the household to rent accommodation while he was working in the public service. The applicant claimed the relationship to his wife who is Chinese and converted to Islam, broke down, at least in part, due someone telling her that the marriage was illegitimate because she fell pregnant out of wedlock. The applicant claimed that he was paying for his and his family’s accommodation, alimony to his former wife for his [children] ([amount] Malaysian ringgit per month); as well as living expenses. The applicant claimed that the expenses and the cost of living were so great and his income so inadequate, the applicant was forced into homelessness in Kota Kinabula. In short, the applicant claimed this to be the financial impact on him arising from his spousal relationship

33. During the hearing, there was a discussion whether the applicant or his wife had lawful custody over his children who were aged below the age of seven at the time of divorce. The applicant claimed that it was the case that mothers gain custody. The applicant provided some country information to support this claim. According to the Tribunal’s own research about marriage and custody laws in Malaysia, a parent may apply to court to place a legitimate child in his or her custody.  However, if the child is below the age of seven years, then there is a rebuttable presumption that it is best to place the child with his or her mother.  In deciding whether the presumption applies, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody.  This country information and the age of the applicant’s children support the applicant’s claim made at the scheduled hearing and accordingly, the Tribunal accepts that his former wife has current custody of the children and the applicant as a divorcé would be required to pay maintenance to his children, as claimed.

34. Overall, the Tribunal has considered the applicant’s claimed circumstances in this regard about his marriage breakdown and the custody of children to be the case and the Tribunal accepts that at the time of his departure from Malaysia and at the time of application for this protection visa, the applicant was indeed living with a great deal financial stress and living beyond his means, as claimed.

35. However, the Tribunal also considered whether there are more recent developments. The applicant claimed that he is now talking more regularly to his children (via facetime) while he has been in Australia and that he is on better terms with his wife. The applicant elaborated that his wife is not only surviving but is making much money in a [business] based [overseas]. The applicant claimed that this emotionally wounded him because as a proud Muslim male he should be the breadwinner and not his wife who is financially successful, indicating that his children will not face any significant hardship if the applicant returns to Malaysia. The Tribunal assesses these claimed circumstances, including that the applicant is a divorce without custody of his children, to be credible and finds the applicant’s children are currently and into the foreseeable future, materially well cared for.

36. If the applicant returns to his home state of Sabah or anywhere within Malaysia, the Tribunal finds that the applicant as a divorcé without custody of his children has a real chance of being required to contribute the ongoing financial maintenance of his children, that he will continue to have limited access to his children and that he will continue have feelings or emotions of inadequacy, estrangement or hurt in that the applicant will not be the bread winner of his now broken but financially secure family or have full access to his children.

37. However, the Tribunal does not accept based on these personal circumstances and that of his family, the applicant faces a real risk of some emotional and financial harm that will amount to serious harm, as a divorcé without child custody, in of itself as a member of a particular social group, if he were to return to Sabah specifically or anywhere else in Malaysia. With regards to the complementary protection provisions of the Act, the Tribunal finds there are no substantial grounds for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, will not face real risk of significant harm, including being subjected to cruel or inhuman or degrading treatment or punishment, due to being a divorce without child custody.

    Employment discrimination findings

38. The Tribunal has considered whether the applicant will be able to return to his home state of Sabah and not face a real chance of serious harm, arising from employment discrimination based on his ethnicity, or a real risk of significant harm for the same claimed reasons, into the foreseeable future.

39. According the applicant’s written claims, he was employed public sector employment on a permanent basis for the last [number of] years within a [department] and that he was passed over for promotion, despite his levels of education and experience, based on ‘ a bit of racism’ in his office.  During the scheduled hearing, the applicant elaborated on these very limited and vague claims by stating that he worked for [a] government department responsible for [certain work] first in [one branch] and then [in other] branches - and that he was working in his department for the last [number of] years and that the wage was relatively low. The applicant claimed that he had undertaken the required professional development courses; that applied for unsuccessfully for promotion and that he had a reasonable The applicant claimed that he because he belonged to a smaller Indigenous ethnicity compared to the larger Indigenous grouping, the applicant claimed that he was racially discriminated against while members of the Kadazan, Bajau and Brunei tribes progressed.  The applicant also claimed that he was discriminated against in seeking promotion due to his religion as the predominately Kadazan (or Kadazan-Dusun) employees were Christian. The Tribunal said that he was aware of this racial discrimination as it was casually but not officially talked about openly.

40. There is limited information in English about the Tidong people of Sabah who one of many other indigenous minorities in eastern Malaysia such as the Rungus, Lun Daych, Bisaya and Kedyaan. The Tidong originated from the north eastern coasts of Sabah where there is about 28,000, East Kalimantan in Indonesia where there is about 27,000 people and a few thousand in The Philippines. The majority of Tidong people appear to be Muslims.[2]

    [2] Tidung people, Wikipedia, >

    According to minorityrights.org, Sabah’s ethnic and indigenous composition is described as follows:

    Most of Sabah’s more than 3 million people can be considered as minorities within the context of the whole country, since they are for the most part non-Malay and are either indigenous (more than 60%), Chinese (about 20%) or from ethnic groups originating from southern Philippines, Indonesia or other parts of Malaysia. Some of the largest minorities are the Kadazan-Dusun (about 25%), Bajau (15%), and Murut (3%). These are in fact broad categories, with for example 13 main languages spoken within the Kadazan-Dusun grouping. About 500,000 people speak languages from four indigenous language families: Bajau, Dusunic, Murutic or Paitanic. Less than 10 per cent are ethnic Malays.[3]

    There is a great diversity within these numerous indigenous and other minority groups. The Kadazun-Dusun, for example, traditionally lived in longhouses and planted rice on the fertile hills and plains of Sabah, as well as conducting some nomadic slash-and-burn agriculture. A majority of Kadazun-Dusun are now Catholics or animists, and some have converted to Islam, but some of their ancestral animistic beliefs are maintained in festivals such as the Pesta Kaamatan, or Harvest Festival. Younger generations have moved away from many of these traditions and some occupy prominent professional posts.

    The vast majority of Bajau are Muslims, and like the Kadazun-Dusun are a grouping of distinct ethnic groups who share related linguistic and cultural origins. They were, until very recently, a nomadic, seafaring people, possibly originating from the southern Philippines, who are sometimes referred to as Sea Gypsies, practically living on their boats, the lepa-lepa. This traditional way of life has for the most part disappeared as many now live in settlements on the west coast, particularly around Mengkabong and Tempasuk.

    [3]  Malaysia- Indigenous peoples and ethnic minorities in Sabah: Profile  type="1">

    The Tribunal also notes the country information from the most recent country report on Malaysia by Australia’s Department of Foreign Affairs and Trade, which states that the Constitution gives ethnic Malays and other indigenous groups, collectively known as bumiputera, special status. Government regulations and policies implement preferential programs to boost the economic position of bumiputera. Such programs promote increased opportunities for bumiputera to access higher education, careers within the civil service, commercial opportunities and housing. Some industries maintain race-based requirements that mandate a certain level of bumiputera ownership. Given their preferential treatment, DFAT assesses bumiputeras would very rarely face discrimination or violence on the basis of their ethnicity.

    Nevertheless based on this country information and on the applicant’s overall credibility, the Tribunal accepts that it is not far-fetched to specifically claim that members of very small Indigenous minorities [have] experienced discrimination in his public sector employment as claimed by the applicant. Therefore the Tribunal finds that the applicant’s own specific claims to have been continuously overlooked for promotion are to be credible. However the discrimination obviously does not extend to excluding the [particular minority group] from the public sector given the applicant had been a long term employee of [the] government.

    With regards to the applicant’s overlapping or related claims regarding religious discrimination in Sabah’s public sector, the Tribunal does not accept that Kadazans who are predominately Christian denied the applicant public sector elevation solely or primarily based on his religion as the applicant had claimed the primary reasons he had been also denied promotions by predominately Muslim-orientated indigenous groupings such as the Bajaus or the Bruneians, on the basis of the applicant’s ethnicity and not because of his shared religion with public servants who shared his religion. Accordingly the Tribunal finds that the discrimination against the [minority group] is primarily and predominately based on his ethnicity and only marginally related to them being predominately Muslim. In this regard, the Tribunal also notes that a majority of Sabah adhere or identify with the Islamic faith and that the applicant is a member of the bumiputera which offers him advantages over other ethnic minorities, as discussed during the hearing. Accordingly, the Tribunal finds that the applicant will not face a real chance of serious harm solely from religious discrimination in the workplace or be denied promotion in the public sector. However it does find that the applicant will face a real chance of harm based, at least in part, because of his religion, in those plausible circumstances where indigenous Christians in authority, should the applicant return to his home state of Sabah and re-join the public service.

    Based on the same country information and the findings above, the Tribunal finds that the applicant does have a real chance of experiencing employment discrimination in the public sector or even in the private sector or more widely, through societal discrimination, if the applicant were to return to Sabah in the foreseeable future. 

    However, if the applicant were to return to his home state of Sabah, the Tribunal does not accept that the applicant will experience a real chance of harm that amounts to serious harm in the foreseeable future.  In this regard, the Tribunal notes that the applicant was never discriminated to a level in which he was denied public sector employment by [the] government; that he worked in the same sector in at least two different positions for over [a number of] years; and that he remained in the public sector employment right uptil he departed. The applicant further claimed that his salary was very low and he struggled to be a bread winner and, in combination of the applicant’s family breakdown, when he was required to live separately from his former wife, could not afford accommodation and other expenses, which led him to become homeless while as a divorced father without child custody rights. However the Tribunal does not accept that it was discrimination based on his race or religion, in of themselves or primarily, caused the harm he experienced in the past. Rather it was primarily the breakdown of his marriage in combination of these discriminatory factors. Given the applicant has the capacity and motivation to find work, his relatively sound educational and employment background and a member of bumiputera, the Tribunal does not accept that the applicant will face a real chance of difficulties and challenges in re-engaging the public service, or the private sector  the workforce if he were to return to his home state. These challenges will also be deepened by his responsibilities to the maintenance of his children, however the levels of difficulties, challenges or discrimination, while onerous, do amount to serious harm in the sense that the applicant will face severe economic hardship or deny him capacity to earn a livelihood that threatens the applicant’s capacity to subsist or the applicant will be denied access to basic services, where the denial threatens the person’s capacity to subsist, in the foreseeable future, pursuant to s5J(4).

    Accordingly, the Tribunal does not accept that the applicant will face a real chance of serious harm or persecution involving systematic and discriminatory conduct based on his race or religion, either in the public or private sectors or with society as a whole, if he were to return to his home state of Sabah, to find work and uphold his family responsibilities, now or into the foreseeable future.  

    Based on the same findings, the Tribunal finds that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, will not face real risk of significant harm, including being subjected to cruel or inhuman or degrading treatment or punishment, due to his indebtedness, in this regard. 

    Harm Arising from Indebtedness

    The applicant made a very late claim that that he had a debt of about [amount] Malaysian ringgits (or around [amount] Australian dollars) and that he was paying the debt down. When the Tribunal asked whether his wife would be of assistance, he said she would not. When the Tribunal enquired whether the applicant’s [relatives] would assist, the applicant claimed his aged father needs help and his [siblings] were always busy but perhaps they could assist him in paying back his loan. Ordinarily such a late claim would be considered in lacking in credibility; however the Tribunal accepts that the applicant did have such a loan as claimed. Given this specific claim was not raised in the applicant’s written claims, the Tribunal places some, but not a considerable, emphasis on this indebtedness causing the applicant further financial and emotional distress as a divorcé without child custody prior to his departing from Malaysia and to his personally held fears in returning to Sabah specifically and Malaysia in general.

    The Tribunal notes that the applicant did not advance the specific claim that the loan was raised through a loan shark or that the harm in repaying the loan was based on reason outlined in s.5J(1)(a) ; however it does find that as a divorcé  without child custody the applicant does other financial commitments which adds to his financial responsibilities and emotional stress as these claimed debts. Based on the information and findings above, the Tribunal does not accept the amount owing is a significant or a crippling amount and that the applicant will face a real chance in struggling to repay the loan. Given the applicant has the likely support from his employed siblings living in Sabah, the Tribunal finds that the applicant will face a real chance of challenging, even onerous difficulties, in paying this debt in combination with a diminished disposable income and through alimony; however it finds that the level of harm does not amount serious harm arising the applicant’s accepted indebtedness, in the sense that the applicant or his family will experience severe economic hardship or deny him the capacity to earn a livelihood that threatens his capacity to subsist or the applicant and his family will be denied access to basic services, where the denial threatens the person’s capacity to subsist that would satisfy any of the serious harm listed non-exhaustively in s.5J(5) or would satisfy s5J(4), if he were to return to his home state of Sabah, into the reasonable foreseeable future. In this specific regard, the applicant does not have a well-founded fear of persecution or satisfy s.5J(1), if he were to return to Sabah specifically or Malaysia more generally.

    For the reasons above, the Tribunal finds that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, will not face real risk of significant harm, including being subjected to cruel or inhuman or degrading treatment or punishment, due to his indebtedness, that would satisfy s.36(2)(aa).

    Residual Claim: Economic Circumstances

    The applicant also made written claims about the poor state of the Malaysian economy, the cost of living expenses being too high and the risk of him being jobless. Having considered all the applicant’s accepted personal and financial circumstances into account, including his family breakdown and his indebtedness, the Tribunal makes a further finding whether the applicant’s claims that he faces a real chance of serious harm based on his economic circumstances.

    Given the Tribunal’s findings the applicant is strongly motivated, [reasonably] well-educated, that he was working right up to the time of his departure; that he has the financial and emotional support of his family and its findings about racial and religious discrimination, it finds that the applicant will be able to return to any part of Malaysia, including Sabah to find work, generate income and repay his debts. The applicant further claimed the cost of living in Malaysia is higher and the wages too low compared to Australia. The Tribunal does not accept the applicant’s characterisation of the economy in Malaysia based on DFAT’s most recent report on Malaysia in which the economy is featured by relative strong growth, low inflation and low rates of poverty. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work if he were to return to Malaysia, it does not accept the applicant will not be able to access paid employment into the reasonably foreseeable future. The Tribunal acknowledges that the applicant has genuine personally held fear regarding the cost of living being too high and the remuneration in low skilled work too low, including in the public sector, if he were to return to Malaysia. In this regard, the Tribunal notes the relatively negligible poverty rates across all major ethnic groups in Malaysia. For these reasons, the prospects of finding work in Malaysia based on the applicant’s circumstances does not amount to the applicant facing a harm that will amount to serious harm, in the sense that the applicant or his family will experience severe economic hardship or deny him the capacity to earn a livelihood that threatens his capacity to subsist or the applicant and his family will be denied access to basic services, where the denial threatens the person’s capacity to subsist. Accordingly, the applicant does not have a real chance of serious harm arising from his economic circumstances for reasons mentioned in s.5J(1)(a) or any other claimed reasons, if he were to return to anywhere within Malaysia, now or in the reasonably foreseeable future.

    The Tribunal has considered if there are any reasons as substantial reasons to believe, the applicant  will face a real risk of significant harm arising from the applicant’s economic circumstances as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as non-exhaustively required by 91R(1)(b) in the context of s.36(2)(a).[4]  As outlined above, based on the applicant’s accepted personal circumstances, the applicant will face difficulties and challenges arising from finding work to support himself and his family, if removed from Australia. However it does not accept the applicant will not be able to access paid employment anywhere in Malaysia, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s36(2A).  Furthermore the Tribunal finds there is no intention on the part of the governing of the Malaysian economy in combination of market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference.

    [4] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].

    Based on the applicant’s economic and personal circumstances, cumulatively considered, the Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia for Malaysia, based on the applicant’s economic circumstances will amount to any significant harm outlined in s.36(2A).

    Mental Health

    Although the Tribunal has accepted many of the claims of the applicant has credible or plausible, there were a number of critical or dispositive claims the Tribunal found to be lacking in credibility and consistency. Towards the end of the scheduled hearing, the applicant claimed that he was living with mental distress and was susceptible to self-harm. The Tribunal enquired whether he had ever visited a psychologist or had physically harmed himself; the applicant responded that he neither visited a psychologist, nor had he self-harmed in the past. The applicant spoke movingly of his separation from his children and stated that he no more tears left. The Tribunal accepts that the applicant clearly presented as a person living under considerable psychological stress; yet his answers and comments about the applicant’s marital and familial background were lucid, responsive and articulate.  The Tribunal understands that appearing before the Tribunal may be stressful and that is living with the emotional distress of a bitter divorce and estrangement from his children and that as a proud Muslim male, as claimed , he genuinely feels diminished by his circumstances and his failure to be the main breadwinner in his family. The Tribunal notes that the applicant has not provided any medical information from a medical professional to support his claims of susceptibility to self-harm, that he does not claim to have self-harmed in the past and that he has never engaged a medical professional to treat his claimed symptoms. Based on this information, the Tribunal finds that the stress the applicant expressed during the hearing is treatable and that the applicant is sufficiently emotionally and psychologically robust or resilient to return to Malaysia and that he will not face a real chance of emotional or psychological suffering that amounts to serious harm due to his emotional or psychological state, his race, religion, membership of particular social groups or any other reasons outlined in 5J(1)(a), cumulatively considered. Based on the same information, the Tribunal does not have any substantial reason to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to anywhere in Malaysia, will face a real risk of significant harm, including being subjected to degrading treatment or punishment, based on his emotional and psychological state. In this regard, the applicant does not satisfy either sections 36(2)(a) or 36(2)(aa).

    For completeness, in acknowledging that the applicant’s personal stress, the Tribunal is satisfied that the applicant was given a real and meaningful opportunity to give evidence and present arguments, including with the adequate time for a post hearing submission, in relation to the issues arising from the decision under review in a manner that was consistent with s.425 of the Act.

    Cumulative Findings

    Even when cumulatively considering the emotional, psychological and financial difficulties that the applicant will have a real chance of facing into the reasonably foreseeable future, the Tribunal is not satisfied that the harm will amount to either serious harm that would satisfy s.5J(4) of the Act.  Similarly, having accepted that there is a real risk of harm, cumulatively considered, facing the applicant if he is removed from Australia to his country of reference, the Tribunal remains unsatisfied that the harm amounts to significant harm of any kind outlined in s.36(2B).

    Having assessed all the applicant’s claims, both individually and cumulatively, as the applicant does not satisfy s.5J(1) if he were to return to his home state of Sabah specifically, the Tribunal accordingly finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a). 

    Having assessed all the applicant’s claims, both individually and cumulatively, against the Act’s complementary protection provision, the Tribunal finds there are no substantial grounds for believing that the applicant, as a necessary and foreseeable consequence of him being removed from Australia to his home state of Sabah or Malaysia more generally, will face a real risk of significant harm of any kind. Accordingly, the Tribunal finds that the applicant does not satisfy s.36(2)(aa).

    Conclusion

    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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

    The Tribunal affirms the decision not to grant the applicant a protection visa.

    Brendan Darcy
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …