1704870 (Refugee)

[2021] AATA 3439

1704870 (Refugee) [2021] AATA 3439 (6 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704870

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE:6 July 2021

PLACE OF DECISION:  Perth

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

Statement made on 06 July 2021 at 10:17am

CATCHWORDS
REFUGEE – protection visa – Malaysia – economic and political issues – high cost of living – low income households in Malaysia – spouse and child’s separate protection visa applications – COVID-19 pandemic – personal indebtedness – child’s ‘illegitimate status’ – interfamilial animosity – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 104
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Or (1996) 185 CLR 259

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 and Border Protection on 22 February 2017 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 Malaysia, applied for the visa on 19 July 2016.

3. The applicant was not represented during the review application process.  Hearings were held with the assistance of an interpreter fluent in both the English and Malay languages.

   ISSUES TO BE DETERMINED AND DECISION SUMMARY

4. The delegate refused to grant the visa on the basis that generalised claims relating to “economic and political issues’ or facing a ‘high cost of living’ do not place a person within any of the categories of persecution at s.5J(1)(a) of the Act for the purposes of protection in Australia, grounded on the refugee criterion at s.36(2)(a) of the Act. 

5. The delegate further found that the applicant was not eligible for a protection visa by reference to the complementary protection criteria at s.36(2)(aa) of the Act because he had not identified any particularised risk of harm directed at himself in that country now or in the reasonably foreseeable future.  Neither did the applicant identify how the harm identified in his claims might amount to significant harm consistent with s.36(2A) of the Act.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

7. The law relevant to this application for review is discussed at ‘Attachment - Extract from the Act’.

   PRESIDENT’S DIRECTION

8. I have had regard to the President’s COVID-19 Special Measures Practice Direction, Migration and Refugee Division 27 April 2020.  I have also had regard to the President’s Direction, Conducting Migration and Refugee Reviews 1 August 2018.  In particular:

   ·     That Members are to take all reasonable steps to complete cases allocated to them as quickly as possible;[1] and

   ·     That generally, in reviewing a decision to refuse the grant of a protection visa, Members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.[2]

   [1]Consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b) at [2.1].

   [2]At [8.1]

   NEW CLAIMS AND EVIDENCE

9. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim, or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition that it is for an applicant to make their own case.[3]  Applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. 

   [3]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

10. Two obligations here are particularly relevant.  First, the ongoing requirement under s.104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity. 

    CRITERIA FOR A PROTECTION VISA

11. The criteria for a protection visa are set out in s.36 of the Act and Sch.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) of the Act. 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.

12. 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.

13. 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.[4]  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.[5]

    [4]Section 5H(1)(a) of the Act.

    [5]Section 5H(1)(b) of the Act.

14. Under s.5J(1) of the Act, 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 s.5J(2)–(6) and ss.5K–5LA of the Act, which are extracted in the attachment to this decision.

15. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criterion for the grant of the visa at s.36(2)(aa) of the Act 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 (‘the complementary protection criterion’).

16. 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 s.36(2A) and (2B) of the Act, which are extracted in the attachment to this decision.

    Findings relating to applicant credibility

17. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[6]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

    [6]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

18. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[7]  Foster J stated that ‘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.’[8]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

    [7](1996) 40 ALD 445.

    [8]At 482.

19. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[9] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[10]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

    [9](1996) 185 CLR 259.

    [10]At [25].

20. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[11]  Nevertheless, as Burchett J counselled,[12] it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [11][1997] FCA 1198 ( accessed 15 February 2021).

    [12]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

21. The Full Court of the Federal Court noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[13]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84–86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[14]  Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[15]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[16]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[17]

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    [13]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 ( accessed 15 February 2021).

    [14]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.

    [15]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [16]MIMA v Rajalingam (1999) 93 FCR 220.

    [17](1999) 197 CLR 510 at [191].

22. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

23. If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.  The Tribunal notes that in Iyer,[18] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[19]

    [18]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

    [19]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

    Mandatory and other considerations

24. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

25. The Tribunal has also had regard to Migration and Refugee Division guidelines on the assessment of credibility, issued in July 2015, which provides:[20]

    It is in the nature of an application for protection that determinations are made, at least in part, on an assessment of the applicant’s credibility, and on the credibility of claims themselves.

    [20]At [8].

26. Further:[21]

    In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, and the Tribunal is satisfied that the applicant does not have a reasonable explanation why their claim was not raised, or the evidence was not presented before the primary decision was made, the Tribunal must rule an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements of section 4.3.2A of the act.

    [21]At [13].

27. Also:[22]

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal. 

    A member should maintain, and be seen to have, an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant critical issues on which his or her application may depend. 

    An applicant may be favourably fronted with matters that would be adversely on his or her credit, or which bring his or her account into question.  However, the Tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.

    [22]At [17]–[19].

28. With respect to contradictions, inconsistencies, and omissions:[23]

    Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

    The Tribunal will consider all of the evidence before it recesses, whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

    [23]At [27]–[28].

    COUNTRY INFORMATION

29. In addition to the country information referred to in the delegate’s decision record which was provided to the Tribunal by the applicant with his application for review, the Tribunal has had regard to the most recent DFAT Country Information Report for Malaysia (dated 29 June 2021).  In particular, the discussion in this publication relating to the treatment of returnees. 

30. I note that this publication provides as follows:[24]

    Many thousands of Malaysians enter and leave the country every day.  People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return on account of their absence.

    [24] At [5.37].

31. I have also had regard to the Department of Home Affairs publication, Malaysia, Common Claims, COISS 26 March 2021. 

    HEARINGS

32. The applicant appeared before the Tribunal at four hearings, to give evidence and present evidence.  The first hearing on 14 September 2020, took place by teleconferencing due to precautions surrounding the COVID-19 pandemic emergency.  Prior to the hearing, the applicant provided the Tribunal with news articles concerning the impact of the COVID-19 pandemic in Malaysia, a confirmation of enrolment of his daughter in a Western Australian primary school, a copy of his forklift licence and a letter of confirmation of employment.

    First hearing

1. At the outset of the first hearing I explained what documents the Tribunal had in its possession.  I read to the applicant the summary of claims contained at Part 4 of the delegate’s decision record which was as follows:

   ·     He left Malaysia because of economic and political issues.

   ·     If he returns to Malaysia, he will face a high cost of living.

2. The applicant confirmed that the delegate had rendered a fair and accurate summary of his written claims for protection. The applicant confirmed that he did not wish to amend or add anything further to any of these claims. The applicant stated that he wished to add to his claims for protection.  The applicant stated that economic circumstances had become much worse in Malaysia since the COVID-19 pandemic, that he would be returning to no job and that, prior to leaving Malaysia, his family relationships had become strained because of his inability to provide for his wife and child.  He also stated that he was content for the Tribunal to proceed based on the information discussed above, in the context of previous submissions.

3. I referred to the applicant’s application for protection, in which he disclosed nothing about the presence of his wife or child in Australia.  I pointed out to the applicant that he had not applied for protection on the basis of there being a family unit in Australia.  The applicant stated that his wife was an applicant for protection in Australia in her own right.  After direct questioning, the applicant stated that his daughter was also, separately an applicant for protection in Australia.  After taking the personal details of the applicant’s wife and daughter, I put to the applicant that this changed the complexion of his application considerably, and that I would need to understand the family unit’s circumstances more fully before proceeding.

4. Following the first hearing, the Tribunal ascertained that the applicant’s wife was, separately, a review applicant before the Tribunal, having also been refused an application for a Protection visa.  The review application by the applicant’s spouse[25] was constituted to the Tribunal as constituted in this matter and, thereafter, both reviews proceeded in a related fashion by consent of the applicants.

   [25] Tribunal Ref: 1704861.

   Second hearing

5. A second hearing with the applicant was held on 8 March 2021.  This was scheduled to coincide with the first hearing with his review applicant spouse.  Prior to the hearing, the applicant submitted a further employment reference; a personal reference from his sister in Malaysia; a Malaysian Government press release for November 2020 ‘Key statistics of labour force in Malaysia’; an OECD Economic Surveys ‘Malaysia, July 2019 Overview’ report; and, a proof of employment letter.

6. Prior to hearing from the applicant, a hearing was held with his spouse and both were advised that they potentially were witnesses in connection with one another’s review applications.

7. At the outset of the hearing, I explained to the applicant that his employer references did not appear to be relevant in the context of a protection application.  I then asked the applicant to explain the relevance of the other written submissions in the context of his application for protection. 

8. I noted that the summary economic data suggested that Malaysia had a reported unemployment rate of 4.8 per cent.  The applicant pointed out that the OECD summary document contained information at pp.27–29 which were of relevance to his protection claims.  I accept that this information supports the applicant’s claims that low income households in Malaysia are vulnerable to general economic circumstances.  However, this data does not suggest the degree of particularity of harm required under either the refugee criterion or the complementary protection criteria for the purposes of a protection application.  Accordingly, while I accept this submission, I find that it has neutral weight in the context of this application.  Further the economic data is broadly consistent with the economic overviews contained in the DFAT country information referred to by the Tribunal.  This more recent document states as follows:[26]

   The World Bank classifies Malaysia as an upper middle-income, export-oriented economy.  In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000).  Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products.  Malaysia is the world’s second largest producer and exporter of palm oil.  Manufactured goods comprised 86.5 per cent of Malaysia’s exports in 2020.  Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source.

   [26] DFAT Country Information Report for Malaysia (dated 29 June 2021).

9. I asked the applicant about the reference in his sister’s support letter to him being ‘stressed till he become ill’ while in Malaysia.  The applicant stated that his lack of employment while in Malaysia left him stressed and depressed.  I asked the applicant what treatment he undertook for his symptoms and he stated that he had taken Panadol.  The applicant stated that, while he enjoyed general good health, he found the review process to be stressful and made him more nervous.  I accept the applicant’s evidence in this respect.

10. I took a personal history from the applicant about his life in Malaysia.  He is the second of [number] children born to his parents (the youngest, the applicant’s brother is deceased).  His father died in around 2010 and his mother, with whom he has a good relationship, remarried in around 2014 and her second husband has [number] children from a previous relationship.  All of his family of origin live in Malaysia.

11. According to the applicant, the family of his spouse does not approve of his marriage and has pressured he and his spouse to separate or divorce because the applicant has not been a reliable economic provider. 

12. The applicant and his spouse left Malaysia for Australia in June 2016, traveling on a UD-601 ETA Visitor visa with the intention of securing employment and an income.  They left behind their daughter, aged [age] years, with the family of the applicant’s spouse.  Neither the applicant nor his spouse declared that they had an infant child living in Malaysia when they applied for protection in Australia in July 2016.  While they were living in Australia, the applicant’s sister-in-law arranged for the applicant’s daughter to obtain a Malaysian passport [in] 2016.  I note that the passport of the applicant’s daughter has a number of stamps showing entries and returns to and from Singapore in 2017.

13. The applicant stated that, in 2016 before he departed Malaysia for Australia, he had been unemployed and was pressured by friends to sell drugs for a criminal organisation.  The applicant did not make any reports to police and has not disclosed this matter to his spouse.  Despite being questioned about the details of these events, the applicant’s responses were extremely vague and not credible in terms of detail.  I find that this claim is of late invention and not genuinely subjectively made by the applicant.

14. I asked the applicant to explain the circumstances of his daughter’s arrival in Australia.  He stated that his daughter was unhappy without her parents, so after approximately 18 months, he and his spouse paid for his mother-in-law to accompany his daughter to Australia and return to Malaysia without the child.  The child and her grandmother arrived in Australia [in] November 2017 travelling on a UD-601 ETA Visitor’s visa.  It is of some concern that these international movements of an infant child were neither notified to, nor subject to detailed enquiries by immigration authorities in either country at the time.  It is also of concern, from a credibility perspective, that the applicant did not disclose the existence of this infant child in his initial application for protection dated 17 July 2016.

15. In the event, following her arrival in Australia, the applicant’s infant daughter was the subject of a protection application on 21 March 2019.  This application substantially relied on the protection claims of the parent applicants, however, there is also some reliance on inter-familial disaffection in the application.  The applicant’s infant daughter was notified that her application for protection was refused in a decision dated 10 November 2020.  No application for review was lodged on behalf of the child within the relevant statutory timeframe, accordingly, the Tribunal has no jurisdiction with respect to the infant child and the infant child does not appear to have any legal basis to remain in Australia.

16. The applicant could not explain the precise migration status of his infant child, nor of the implications of this for his own application for protection.  I advised the applicant that he should obtain clarity about these matters and that it may be in his interests to seek legal advice and/or approach the Department for further information so that he was in a better position to articulate his claims in the context of the review application.  I told the applicant that I would make my own enquiries about these matters as far as it was appropriate.

17. Prior to the third hearing, on 10 June 2021 the Tribunal summonsed the Department to obtain a copy of the decision record and notification letter relating to the refusal of a protection visa for the applicant’s daughter [Child A] (date of birth [date]).  The Tribunal wrote to the applicant on 15 June 2021 pursuant to s.424A of the Act in the following terms:

    Enclosed, please find a copy of the decision of a delegate of the Minister for Immigration dated 20 November 2020, in which that person refused to grant your daughter [Child A] (DOB: [date]) a protection visa.  This decision was attached to the enclosed Notification letter. In the Notification letter, you were advised that you had 28 days to lodge an application with the Tribunal for a review of the refusal decision.

    A review of the Tribunal systems indicates that you did not apply to the Tribunal for a review of your daughter’s refusal decision within 28 days.  Accordingly, the Tribunal has no jurisdiction to make a decision about your daughter.  The Tribunal understands that your daughter remains in Australia in the care of her parents on a Bridging Visa pending return to Malaysia.  There is nothing before the Tribunal to suggest that she would depart Australia without either or both her parents (i.e.: you and your spouse). 

    This might raise an inference that either or both of your daughter’s parents (i.e.: you and your spouse) intend to return to Malaysia in the foreseeable future.  Such an inference, if taken, might suggest that either or both of your daughter’s parents (i.e.: you and your spouse) do not hold a subjectively well-founded fear of harm in Malaysia now and for the foreseeable future from any person or for any reason.  This could form the basis for finding that either or both of your daughter’s parents (i.e.: you and your spouse) are not persons in respect of whom Australia owes protection obligations under either or both s.36(2)(a) or s.36(2)(aa) of the Act.

18. In none of the subsequent engagements with the Tribunal, has the applicant or his spouse offered an adequate explanation for their failure to apply for a review of their daughter’s Protection visa refusal.  One of the consequences of this failure to apply for a review of their daughter’s Protection visa is that the Tribunal has no jurisdiction with respect to the applicant’s dependent child.

    Third hearing

19. A third and final hearing with the applicant was held on 25 June 2021.  At this hearing, I asked the applicant why he had not applied for a review of his daughter’s application for protection.  The applicant stated that he had some problems accessing his email account, and that when he read the refusal notification for his daughter’s application for protection, he did not know how to respond.  This explanation does not adequately explain the failure to apply for a review of his daughter’s Protection visa for two reasons.  Firstly, I had closely questioned the applicant about his daughter’s migration status at the first hearing on 14 September 2020.  Having been placed on notice at that time, it is reasonable to expect that the applicant would have been aware that this matter was a live issue.  That would place certain practical obligations on a reasonable person in the applicant’s position, including making some enquiries with the Department and checking the contact details that were on the Department’s records for his daughter at the very least.  On 20 November 2020, the applicant was notified by the Department of the decision as indicated above.  Second, the applicant and his spouse both applied for review of their own applications for protection on receipt of notification of refusal in the first instance.  Accordingly, the applicant had practical personal knowledge of the review application process.

20. The failure of the applicant and his spouse to apply for review of the Protection visa refusal decision in relation to their daughter (on behalf of the applicant’s daughter) suggests that the applicant accepts the delegate’s assessment that his daughter has no reasonable basis for claiming to engage Australia’s protection obligations.  I note that, to a significant degree, the applicant’s daughter was relying on the protection claims maintained by the applicant and his spouse.  To the extent that this was indeed the case, I find that this weighs against the genuineness of the applicant’s own claims for protection.

21. I asked the applicant if he had anything further to add to his claims for protection.  The applicant re-stated the challenges he would face in re-integrating on return to Malaysia.  He had no home or job to return to and had a family to provide for.  In addition, the applicant again stressed the problems associated with the COVID-19 pandemic in Malaysia.  I asked the applicant how these matters represented a form of harm that would be directed to him as an individual or as a member of a particular social group.  The applicant could not identify any individual or group who would wish him harm in Malaysia now, or in the reasonably foreseeable future for any essential or significant reason.

22. For the first time during his hearings, the applicant referred to debts he owed to a registered lender in relation to a motor vehicle in Malaysia prior to his departure for Australia.  This vehicle had apparently been re-possessed due to non-payment.  The applicant claimed to have been paying this debt in the amount of $[amount]MYR per month since the vehicle had been purchased.  The applicant could provide no documentary evidence to support this late claim.  I note that this late claim was raised in an immediately preceding hearing with his spouse, again for the first time in the context of her application for protection.

23. The applicant suggested that this claim was caught within his broad “economic” claims contained in his original application for protection.  I put to the applicant that, given that the vagueness of his original claims for protection was one of the express reasons for finding that his claims lacked credibility in the delegate’s decision record of 22 February 2017, such a late and uncorroborated new claim (or integer) did not appear to be credible.  I asked the applicant if he had approached any of the debt-crisis assistance agencies in Malaysia to obtain help in connection with any outstanding loans before leaving that country.  The applicant acknowledged that he had made no enquiries of any kind in that direction.

24. The applicant again stated that his circumstances were a source of great stress.

25. I advised the applicant that he could provide any further written submissions in connection with his application for review on or before 2 July 2021.

    Post hearing submissions

26. On 2 July 2021, the applicant provided a written submission which confirms the following:

    a.The applicant and his spouse were married at the time of his daughter’s birth.  I note the applicant’s statement that his spouse was pregnant at the time of the marriage.  I do not accept that this is sufficient for the applicant’s daughter to be regarded as ‘illegitimate’ in any relevant sense in Malaysia.

    b.The applicant’s family of origin is as described above.

    c.The applicant is educated to a secondary level and has a history of employment and unemployment in Malaysia since leaving school.

    d.The applicant has concerns about the political and economic situation pertaining generally in Malaysia.

    e.The applicant has concerns about corruption in the Royal Malaysia Police.  This claim/integer was not mentioned in any of the applicant’s previous submissions in connection with his application for protection.

    f.The applicant claims that his daughter’s illegitimate status puts her at risk of being tortured.  I do not accept that this claim is genuine for two reasons; firstly, as indicated above, I do not accept that the applicant has demonstrated that his daughter is in any relevant sense ‘illegitimate’.  Second, the applicant and his wife departed Malaysia in 2016, leaving his daughter in the care of her maternal extended family at the age of [age].  This demonstrates to my satisfaction that the applicant and his spouse did not genuinely have such an apprehension as far back in time as 2016.

    g.The applicant claims that the family of his spouse are opposed to their marriage.  I do not accept that this claim is in any sense genuine given the combined considerations of the applicant’s daughter having been left in their care for approximately 18 months when the applicant and his spouse departed for Australia in 2016 and the lateness in making the claim for protection without providing an adequate explanation.

    h.The applicant and his family enjoy a higher standard of living in Australia.

    i.The applicant has obtained additional occupational qualifications and experience while working in Australia.

27. On 6 July 2021, the applicant provided a copy of the Malaysian birth certificate for his infant daughter.

    COVID-19

28. I acknowledge that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing heavily on decisions for visa applicants in Australia, however, I note that this decision is not a decision on return.  That being said, I am though mindful, that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.

29. In the absence of additional considerations, I find that whatever measures may be applicable to the population of Malaysia generally in response to the present COVID-19 crisis do not, constitute an intentional act or omission for the purposes of the refugee or complementary findings as to claims considered in this review.[27]  Further, I note the relatively sophisticated measures adopted by the Malaysian state in combatting the COVID-19 pandemic, as summarised in the most recent Department of Home Affairs Common Claims: Malaysia COISS (26 March 2021) appreciation.[28]

    [27]DFAT Country Information Report for Malaysia (dated 29 June 2021). 

    [28]At 2:

    Malaysia has a robust healthcare system and welfare to manage COVID-19. Malaysia’s response to the pandemic has been recognised globally for its effectiveness. Malaysia has relatively well- developed healthcare and social protection systems. Nonetheless, the prolonged pandemic has put considerable strain on Malaysia’s healthcare system. The Malaysian government has implemented a number of stimulus and welfare measures in response to the economic and social impacts of COVID-19. Malaysia’s COVID-19 vaccine program began in February 2021 and aims to achieve herd immunity with 80 percent of its population vaccinated by December 2021.

    FINDINGS

1. I do not accept that the applicant departed Malaysia in June 2016 because of any subjectively well founded fear of harm from any person or for any reason.  Rather, the applicant’s evidence discussed above satisfies me that, at all relevant times, the applicant has sought to enter and reside in Australia to secure a better life and greater economic opportunity for himself and his family.  While there is nothing objectively egregious about this, it does not engage Australia’s international obligations as is required for the grant of a protection visa in Australia at s.36 of the Act.

2. I note that economic conditions of general application in a receiving country do not, in the absence of other considerations, constitute either an act motivated by or with the requisite nexus between one of the refugee criteria, or an intentional act or omission for the purposes of complementary protection provisions.[29]  I also note that, even where an applicant may have a particular vulnerability, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria.[30]

   [29]SZTAL v Minister for Immigration [2016] FCAFC 69.

   [30]MIMIA v VFAY [2003] FCAFC 191 at [60].

3. The applicant’s claims relating to his infant daughter were late and, for the reasons given above, lack credibility in the context of this application for review.

4. The applicant’s claims relating to personal indebtedness in Malaysia are vague, lacking in important and obvious corroboration and were introduced at an improbably late stage in the review proceedings.  For these reasons, I find that they are not credible.

5. The applicant’s claims relating to interfamilial animosity between himself and the family of origin of his spouse in Malaysia are vague, inconsistent with the applicant’s conduct in leaving his daughter in their care for approximately 18 months from June 2016 and were also introduced at an improbably late stage in the review proceedings.  For these reasons, I find that these claims are also not credible.

6. Based on the foregoing analysis of the applicant’s evidence and the credibility issues identified above, I find that applicant’s core claims for protection and his late claims for protection are not credible.  Accordingly, I find that the applicant does not subjectively hold a genuinely well-founded fear of harm from any person, for any reason now or in the reasonably foreseeable future.[31]  Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[32] 

   [31]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.

   [32]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim.  On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.

   Refugee criteria

7. The Tribunal’s finding on the refugee criterion at s.36(2)(a) of the Act with respect to the applicant, based on the foregoing, is that the Tribunal is not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act due to the absence of a genuinely subjective well-founded fear of persecution in Malaysia from any person, for any reason.

8. Accordingly, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as outlined at s.36(2)(a) of the Act.  As the Tribunal has found that the applicant is not a refugee as defined by s.5H(1) of the Act, no further assessment is required in that regard. 

   Complementary protection criteria

9. The Tribunal has considered the applicant’s eligibility for protection under s.36(2)(aa) of the Act, which applies where a decision-maker is satisfied that an applicant is a non-citizen in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm. 

10. As discussed above in this decision, the Tribunal finds that the applicant does not subjectively hold a genuinely well-founded fear of persecution if he were to return to Malaysia now, or in the reasonably foreseeable future from any person for any reason.  The Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of the applicant suffering significant harm.  The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear.

11. For the reasons canvassed above, the Tribunal finds, that with respect to the applicant, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia that there is a real risk he will suffer significant harm now, or in the reasonably foreseeable future from any person, for any reason.  Therefore, the applicant is not a person in respect of whom Australia has protection obligations as provided at s.36(2)(aa) of the Act. 

    CONCLUSIONS

12. The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act.

13. Having concluded that the applicat is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion at s.36(2)(aa) of the Act.  The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations, by virtue of s.36(2)(aa) of the Act.

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

    DECISION

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

    Dr Colin Huntly
    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.

    …