1705814 (Refugee)

[2020] AATA 1738

1705814 (Refugee) [2020] AATA 1738 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705814

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Tamara Hamilton-Noy

DATE:4 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2020 at 10:48am

CATCHWORDS

REFUGEE – protection visa – Malaysia – no Convention ground – economic reasons – unpaid loans – fear of physical assault – economic and political developments – employment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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 March 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 2 February 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection oblgiations.

   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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person.  For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

10. The applicant travelled to Australia on a Malaysian passport and has at all times maintained he is a citizen of Malaysia. The Tribunal finds that the applicant is a citizen of Malaysia and has assessed his claims against Malaysia as his country of nationality.

    Claims for protection

11. The applicant arrived in Australia [in] December 2016 on a [temporary] visa and lodged a written protection application on 2 February 2017.  In his written protection application the applicant stated that he had left Malaysia because the political and economic status of his country became worse and the currency decreased dramatically; the price became higher and was not parallel to basic salaries; and the applicant became ‘unaffordable’. 

12. The applicant attended a hearing at the Tribunal on 17 January 2020.  The Tribunal was assisted at the hearing by a Malay interpreter.  The applicant was not represented at the hearing.

13. At the hearing the applicant told the Tribunal that prior to coming to Australia he had travelled to [Country 1] in 2016 for two weeks to visit relatives.  He had returned to Malaysia for three months and then left for Australia.  He had travelled to Australia on a valid passport and had had no problems leaving through the airport.

14. The applicant told the Tribunal that his father is a Malaysian citizen and his mother is [a Country 1] citizen who lives sometimes in Malaysia with his father and sometimes in [Country 1].  He has [specified family members in specified locations].  He does not have [a Country 1] passport.  He has no family in Australia.  He is not married and does not have children.

15. The applicant stated that he was educated in Sabah until [year] and then in Selangor until [year].  He completed primary school and did not commence high school as there was no transport from his community to a high school.  He worked as [an Occupation 1] [between specified ages].  He left Malaysia in December 2016 and the protection application that was lodged in February 2017 was completed by his friend.  He understands what is in the protection application as his friend explained and he also used google translate.

16. The applicant told the Tribunal that before 2014 he was working as [an Occupation 1] and the economy was stable.  After GST was introduced, the economy started to go down and he got less work.  In 2014 he took out a car loan and in 2015 the economy was still not stable and he defaulted on his accounts.  He was two months overdue and borrowed money from friends.  In 2015 he couldn’t afford to pay these debts; he wanted to venture into business and borrowed money from other friends too.  In total he borrowed [amount]MYR from one friend and [amount]MYR from another friend.  He has finished repaying the [smaller amount]MYR but has not yet paid the [larger amount]MYR back and is still making savings in order to repay this.  His friend has said he can repay this slowly.

17. The Tribunal asked the applicant what he fears about returning to Malaysia and he said that if he pays the money he will not feel any fear.  He is worried that the friend he still owes money to may ‘lose control’.  His friend has not quarrelled with him, but has lent money to another person who he had an argument with.  The applicant stated he does not have any savings at the moment to repay the amount.  The friend hit the other person who owed him money and the other person was beaten by the friend.  The Tribunal asked whether the applicant could approach the authorities if his friend threatened or beat him and he said that so far he has had no arguments with his friend because he has an understanding with him. 

18. The applicant stated that there are no other reasons that he fears returning to Malaysia.  If he applies for employment, very often they would ask him for a medical checkup and he has injuries to [body parts], and potential employers will consider him as disabled.  The Tribunal observed that the applicant [displayed this injury].  The applicant agreed with the Tribunal’s observation that this had not stopped him from working as [an Occupation 1] previously but stated that if employers have a choice, they will prefer an applicant without an injury.

    Country information

19. The following country information was summarised and discussed with the applicant at the hearing and he was invited to comment on the information during the hearing.

20. The most recent DFAT report states that the World Bank classifies Malaysia as an upper middle income, export-oriented economy.  Malaysia has transformed since independence in 1957 to a leading producer of electronic parts, electrical products, oil and natural gas and a variety of other manufactured products.  Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line falling from over 50 per cent in the 1960s to less than one per cent today, although poverty rates are higher in rural areas, particularly in Kelantan, Sabah, Sarawak and Kedah.[1]

    [1] DFAT Country Information Report Malaysia, 2.9 – 2.10.

21. The new Prime Minister as of May 2018, Dr Mohamad, in October 2019 launched a new plan for sustainable and economic growth in Malaysia called ‘shared prosperity vision 2030’, which is focused on providing a decent standard of living for all Malaysians, narrowing the wealth gap and the urban-rural divide by 2030.[2]

    [2] DFAT Country Information Report Malaysia, 2.11.

22. The applicant stated in response to this country information that the employment rate is probably referring to foreign workers.  There is a minimum level of education required and not those with primary school education.

23. Malaysia saw its first change of government since independence in May 2018.  The election manifesto of the new government was to abolish oppressive laws, ensure accountability for police abuses, improve the situation for refugees, ratify international human rights treaties and make Malaysia’s human rights record ‘respected by the world’. By the end of 2018 the new government had begun to take steps on its new reform agenda, although there has been limited legislative progress to date.[3]

    [3] DFAT Country Information Report Malaysia, 2.2 – 2.3.

24. Under the former government, prior to May 2018, political opposition and dissent had often resulted in legal harassment, detention and prosecution.  The new government had dropped a number of sedition cases, freedom of speech had generally improved and in December 2018 the new government had allowed a peaceful rally protesting its position on CERD.  DFAT had assessed that there is increased space for political opposition and dissent under the new government.[4]

    [4] DFAT Country Information Report Malaysia, 3.85.

25. The applicant stated in response to this information that his friends, those who were in imports and exports, were receiving less income because they are obtaining fewer jobs.  If he returns he will find it difficult to find a job because the company is employing less workers and he only has a primary school education. 

26. There are law enforcement entities at federal and state levels.[5]  The Royal Malaysian Police employs 115,000 officers and there are 837 police stations across Malaysia.  Local and international sources consider the Royal Malaysian Police to be professional and effective, although the quality of members’ responses varies depending on levels of training, capacity and engagement in corruption.  Malaysians perceive the police to be one of the most corrupt institutions in the country and the government has publicly acknowledged police corruption and implemented reforms including compliance units within the police force.  A number of police officers have been tried in criminal and civil courts, with disciplinary actions that have been carried out including suspension, dismissal or demotion.[6]

    [5] DFAT Country Information Report Malaysia, 5.1.

    [6] DFAT Country Information Report Malaysia, 5.5 – 5.6.

27. There are federal, state, subordinate and sharia courts in Malaysia. DFAT sources have reported issues with judicial independence, arbitrary verdicts, selective prosecution, delays to relief for civil plaintiffs and preferential treatment of some litigants and lawyers.  Further, the ability of individuals to seek redress through Malaysian courts is variable.[7]  However, DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.[8]

    [7] DFAT Country Information Report Malaysia, 5.13 – 5.14.

    [8] DFAT Country Information Report Malaysia, 5.17.

28. The applicant stated in response to this information that even though he has told his friend he will pay, he is worried his friend does not want to listen.

    Findings of the Tribunal

29. The applicant stated in his written protection application that he had left Malaysia because of the political and economic situation becoming worse.  Malaysia had a new Prime Minister as of May 2018 following democratic elections and the Tribunal is satisfied from the country information that the new government ran on a clear election platform to remove oppressive laws, ensure police accountability and improve Malaysia’s human rights record and that the government has taken steps towards these goals, albeit not through formal legislative change.  The country information considered by the Tribunal in respect of Malaysia’s economic situation suggests that the economy has become stronger rather than weaker and that poverty rates have decreased significantly and that the government has further plans to improve the living situation for Malaysian citizens.  The Tribunal notes recent developments in Malaysia’s political situation however does not believe this would materially affect the Tribunal’s decision.

30. The applicant submitted that he will have difficulty upon return to Malaysia because he has a [specified] injury and because he is primary school educated.  The Tribunal finds that the applicant has been able to find employment previously in Malaysia.  The country information considered by the Tribunal, as noted above, indicates that Malaysia’s economic situation has become stronger.  The Tribunal is not satisfied that the applicant faces a real chance of serious harm if he returns to Malaysia now or in the reasonably foreseeable future because of his [injury] or his education level or because of both.

31. The Tribunal is not satisfied that the applicant faces a real chance of serious harm if he returns to Malaysia now or in the reasonably foreseeable future, because of Malaysia’s political and economic situation.

32. The Tribunal is prepared to accept the evidence the applicant gave at hearing that he was working as [an Occupation 1] prior to 2014, that he signed up to a car loan in 2015 and that he was unable to meet the repayments on the car loan as of 2015.  The Tribunal is prepared to accept that the applicant borrowed money from two friends, has repaid an amount of [amount]MYR to one friend and has an amount outstanding of [amount]MYR to another friend.  The Tribunal is prepared to accept the applicant’s evidence that the applicant’s friend hit another person who owed him money.  However, the applicant gave evidence that he has an understanding with his friend to repay the amount owed slowly.  The Tribunal is not satisfied the applicant’s friend will lose control with him or hit him if he repays the amount owed slowly as agreed.  The Tribunal is not satisfied that the applicant faces a real chance of serious harm if he returns to Malaysia now or in the reasonably foreseeable future, because he owes a friend money that was borrowed while he was living in Malaysia.

33. Having also considered the applicant’s claims cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Malaysia now or in the reasonably foreseeable future, for any reason.

34. 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).

35. 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).

36. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For this reason, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

37. 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

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

    Tamara Hamilton-Noy
    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.

    …