1706246 (Refugee)

1706246 (Refugee) [2019] AATA 6217 (9 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706246
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Brendan Darcy
DATE:9 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 July 2019 at 11:02am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victims of loan sharks – debts to a business investor – fear of killing – effective protection – residing in Australia to address financial commitments – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of the Federation of Malaysia, applied for the visa on 7 November 2016. The delegate refused to grant the visa on the basis that the applicant had sufficient effective protection measures available to him.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Migration Act (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.
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.
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).
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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed to be born in [year] in the Malaysian state of Melaka (Malacca) and that that he is a citizen of the Federation of Malaysia.
On the departmental file ([number]) is a copy of the applicant’s valid Malaysian passport.[1] Also on file is a copy of the applicant identity card (NIC) and drivers licence.[2]
[1] [File number] Folio 42-68.
[2] [File number] Folio 40-41.
The applicant arrived in Australia [in] August 2016 while holding a [visitor visa].
The applicant applied for a Class XA Subclass 866 protection visa on 7 November 2016 and was granted an associated bridging visa.
In his submitted 866 Form, the applicant provided his limited written claims for protection. The applicant claimed that he had debts owing to a loan shark with a large amount of money and that ‘[t]hey tend to force me to pay the money immediately’. The applicant claimed they ‘blackmailed’ to kill me if the money is not paid as soon as possible. As the applicant could not fulfil the loan shark request, he decided to run away from Malaysia for a while. The applicant further claimed ‘they’ will put his family in danger if they find him and take his properties and his family will not have any place to stay. The applicant also claimed ‘they’ will find him anywhere within Malaysia.
No supporting documents for these claims were submitted.
Also mentioned in his 866 Form had been the applicant’s highest level of formal education completing secondary school in Malaysia. He also claimed that been self-employed in selling [products] between April 2013 and May 2016.
The applicant had also written at the time of applicant that he had been residing in in [Town 1] in the Malaysian state of Johor between 2014 and 2016.
The applicant claimed to be ethnically Malay and that he can speak, read and write Bahasa Melayu and some English. He also claimed his religion was Islam.
A delegate on behalf of the Minister refused to grant the applicant a protection visa on 21 March 2017. The applicant valid applied to have the delegate’s refusal decision reviewed by the Tribunal on 28 March 2018. A copy of the delegate’s decision record was attached to this review application.
At the scheduled hearing held on 4 July 2019, the applicant provided evidence and presented arguments as to the reasons he is owed Australia’s protection obligations via a video conferencing facility between the Tribunal’s Melbourne and Sydney offices. The applicant was assisted by an interpreter in the English and Bahasa Melayu languages.
At the hearing, the applicant submitted a two page document from the Companies Commission of Malaysia indicating the applicant was a co-director of a registered [business] since 2014.[3] No other documents were submitted.
[3] AAT Folio
No further submissions or documents were required at the end of the hearing.
Non-disclosure notices
There are no non-disclosure notices directing the Tribunal not to disclose certain information to the applicant attached to the departmental file.
ASSESSMENT OF FINDINGS AND REASONS
Country of nationality
The applicant claims to be a citizen of Malaysia and provided copies of his passport, national identity card and drivers licence to the Department with his application. Based on the available evidence and with none 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
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
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (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.
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.
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.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not 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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
In this decision, the Tribunal accepts a number of limited personal circumstances to be credible. However, applicant’s dispositive written and oral claims that are not considered to be credible are significant, leading the Tribunal to affirm the delegate’s decision not to grant the applicant the protection visa.
Personal circumstances: limited accepted claims
The Tribunal accepts that the applicant was born in [year] in Melaka and that he mostly resided in Johor. It is accepted the applicant is Malay by ethnicity and that he is a Muslim by religion.
With regards to his marital status and family composition, it is accepted that the applicant was married in February 2000 to [his wife] with whom he has [a number of children]. As had been elaborated in the scheduled hearing, the Tribunal accepts that the applicant had an affair with a [Country 1] national but remains married to [his wife] who continues to reside in [Town 1].
During the hearing, the applicant claimed he had travelled to [one country] in a short holiday in 2014; [a second country] on several occasions for work purposes between middle of 2015 and early 2016; that he travelled to [Country 1] for a month in June and July 2016. While this international travel history was not adequately reflected in the applicant’s 866 Form, it is accepted by the Tribunal.
It is accepted that the applicant completed secondary education and, as claimed in the scheduled hearing, that he is a qualified [Occupation 1]; that he worked in factory for many years, and that he worked as [an Occupation 2] in [the second country] for a short period of time.
Although discussed in more detail below, the Tribunal accepts the applicant has accrued a notable amount of debt lawfully acquired from licensed lending entities.
Applicants’ indebtedness to a business associate, loan shark or illicit lender
The applicant attempted to elaborate on his very vague written claims for protection about owing money to a loan shark and that he feared threats of harm, including killing the applicant when he was unable to make repayments or pay in full. During the hearing, the applicant expounded on these claims in the hearing by stating the applicant entered into a business partnership with a man called [Mr A] and that an investor called ‘[Mr B]’. It is noted that [Mr A] is mentioned as one of the two directors of [the named business] in the business registration document submitted to the Tribunal. The applicant claimed that [Mr B] invested or parked [amount] Malaysian ringgit into the [business] and that their understanding that [Mr B] will take back the investment with some interest. The applicant claimed he used the money to pay business costs but his co-director cheated money out of the business account and that the applicant was unable to repay his investor. The applicant further claimed that from around early 2016, [Mr B] came to his residence, slapped the applicant and threatened to kill the applicant and to hire gangsters to harm him on as many as ten occasions prior to his departure. The applicant claimed that he feared [Mr B] so much that for a period of about one month he and his family relocated to Sabah for their safety. The applicant further claimed that he only repaid [amount] ringgits of the amount owing. He claimed that he remits money back to his wife who repays [Mr B] more or less every month but he still owes [Mr B] [amount] in Malaysian ringgits.
Of particular concern to the Tribunal has been the applicant’s generally vague testimony. While the applicant provided some very limited documentary evidence that he was director with a person called [Mr A], he was unable to inform the Tribunal as to his last name as he did not get to know him When the Tribunal asked the full name of the person who invested in his business, the applicant had difficulties remembering his name but eventually nominated ‘[Mr B]’. However he did not know his entire name, even though he entered into a business agreement with that person. Neither did he know any details about the interest rates nor the repayments. The applicant claimed that he did not have any written agreements with the investor or his business partner as they were all verbal. Had the applicant genuinely been in a business partnership or take money from an investor it would have been reasonable to know at least the full names of the relevant persons, to have undertaken a degree of due diligence in the backgrounds and to have insisted in written agreements. The lack of detail which should have reasonably straightforward to recall or provide has significantly invited the Tribunal to consider that the applicant’s overall claims were lacking in credibility.
Also of particular concern was the applicant’s account that he moved to the Malaysian state of Sabah in an attempt to revive his business and that he relocated with his family as his wife’s in-laws lived in that northern Borneo state. It was during period around the middle of 2016 that the applicant claimed he undertook a return trip to [Country 1]. When the Tribunal enquired into the reasons he travelled to [Country 1] and then shortly returned, given he feared persecution at the hands of an investor from whom he borrowed money. The applicant explained that he began an adulterous affair with a [Country 1 national] and that he had fallen for her to the extent that he travelled to [Country 1] to be with her. The applicant said that she had in fact cheated him out of [amount] Malaysian ringgits that he had otherwise planned to build a business in Sabah. The Tribunal enquired into the reasons he did not use the money to repay his debts to [Mr B], to which the applicant described his actions as ‘stupid’. The applicant also said that he returned to Johor shortly after this. This claimed behaviour in travelling to Sabah before returning to Johor with his family, in spending such a considerable amount on a third person for romantic reasons instead of debts and even returning from one country back to Malaysia are not consistent with a person with considerable debts owing to a person who threatens to kill or harm the applicant or even his family members. In this regard, the applicant has further invited overall credibility concerns about these specific claims.
The Tribunal also enquired into whether the applicant had approached the authorities to protect him. The applicant did not claim that he went to the police or made any report. He further stated that he assumed he could settle his debts without doing so. The Tribunal pointed out there was considerable country information in his decision record outlining the levels of effective protection from the Royal Malaysian Police. The applicant later said after outlining the levels of lawful debt he had also accrued that he felt if he returned to Malaysia he could resolve his debt issues with [Mr B] without making a police report. Given that response in the context of the Tribunal’s other adverse credibility concerns, the Tribunal said it sounded as if the applicant was not afraid of his debtor. In this regard, the applicant responded ‘yes’ indicating that he did not have any credible or deep or urgent fears about [Mr B], his threats or any illicit debts that he claimed to have accrued.
The Tribunal has further reasons to consider that the applicant’s claims lacked credibility when the applicant provided oral evidence that he also owed lawful debt arising from his mortgage and other loans. This is discussed in some detail below. In accepting that the applicant had accrued this lawful debt it has invited the Tribunal to consider that the applicant solely travelled to Australia and applied for a protection visa and to gain access to a bridging visa with work rights to repay these debts, in the context of the Tribunal’s credibility concerns about owing any debts to a former investor or loan shark.
Although the applicant’s claims at the Tribunal are not implausible. However, the applicant’s otherwise vaguely written claims and inadequately explained and unsubstantiated oral claims about fears arising from a debt who he described to be a loan shark in his written claims and whom he regarded as an investor making threats to return his outlay, the Tribunal is unable to provide the applicant with the benefit of the doubt that the claims were genuine. This is because, even after providing the applicant an opportunity to elaborate on his vaguely written claims at the scheduled hearing and more than two years to provide more evidence, the applicant’s claims continued to lack sufficiently coherent detail. While he has given some credible evidence that he part-owned a [business], the applicant’s evidence was significantly undermined by his travel from Johor where he was threatened to Sabah and then his travel to [Country 1] only to return to Johor with his family where he claimed he continued to face threats and feared for his family. Furthermore he had some liquid assets when he travelled to Sabah and [Country 1] but did not act in any urgent manner to pay down his debts to avoid serious or significant harm. Instead he used the available funds, at least, to conduct an adulterous affair and to travel internationally. Neither did the applicant seek the protection of the authorities. He also provided oral evidence that if he returned to Malaysia the applicant had assessed he would not need to go to the police, further undermining the claimed credibility and urgency of his claims. When considering the written claims and the oral testimony as a whole, the Tribunal finds that the applicant has not been a reliable or credible witness of truth.

Based on these adverse credibility concerns, cumulatively considered, the Tribunal does not accept the applicant has presented a credible basis for either his written and oral claims regarding repaying a debt which was either illicitly garnered or where there were illicit threats, harassment and physical assaults, as claimed. With regards to the applicant’s written claims it does not accept the applicant owed any money to a loan shark or ah long of any ethnicity as a business director prior to his departure from Malaysia or at any time since his arrival to Australia. It does not accept any threats were made to repay the claimed debt either immediately or by instalment or that the applicant was forced to run away or that his family was in danger or his properties were threatened with confiscation or that he had fears of being located anywhere within Malaysia. With regards to the applicant’s oral claims it does not accept there is any credible reasons to believe that the applicant accrued a level of debt of any amount arising from a business arrangement, either illicitly or otherwise entered into by the applicant with a person called ‘[Mr B]’ or from the applicant being cheated by a co-director called [Mr A]. It does not accept there were threats, directly or indirectly conveyed, or assaults or other acts of intimidation and harassment against the applicant or any of these family members to repay the claimed debt, as claimed at the scheduled hearing. It does not accept the applicant was ever forced to relocate to another part of Malaysia or to travel overseas to avoid such threats and acts of harm to repay the claimed debts or that the applicant has forwarded remittances back to his family living in Johor to repay these debts. This is because the Tribunal finds the applicant has wilfully and deliberately fabricated these specific written and oral claims about owing debts to a loan shark, ah long or aggrieved business associate. Accordingly the Tribunal does not find it credible that state protection was not available to the applicant, as claimed.
Based on the Tribunal’s adverse cumulative credibility findings, it does not accept the applicant had any genuine or deep or urgent personally held or well-founded fears of persecution arising from these fabricated claims about owing debt, either when he applied for a protection visa, while at the scheduled hearing, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a real chance that, if returned to Malaysia, that the applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a), now or into the reasonably foreseeable future, arising from these fabricated written and oral claims.
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).
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).
Based on the same overall adverse credibility findings, cumulatively considered, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, based on the same set of contrived written and oral claims.
Lawful debts
Having made these specific adverse credibility findings, the Tribunal is required to consider whether the applicants face a real chance of serious harm or a real risk of significant harm arising from the lawful debts that the applicant has raised prior to or since his departure from Malaysia to Australia.
In the applicant’s written claims at the time of application, there was no mention that the applicant had raised any lawful debts from licensed financial institutions or authorised lending entities within Malaysia. However, during the hearing, the applicant provided late and new oral evidence that he wanted to remain in Australia to address his financial commitments. The applicant elaborated that he and his family have acquired debt from a mortgage on his residential house; a student loan for the eldest child who is now an adult; credit debt which had been paid off and loan for a motorcycle for his eldest child. He claimed that this debt currently amounted to about [amount] Malaysian ringgits (or about [amount] Australian dollars) and that he pays the debts in instalments. The applicant described his lawful debt situation as “in the midst of a problem”. He feared that should he return to Malaysia he will be returning with so many problems and he cannot see how he could start again given the economy in Malaysia.
It is open to the Tribunal not to accept these claims given the overall lack of credibility in the applicant’s dispositive claim regarding owing debt to a loan shark or business associate who had threatened and harmed him. However, on this occasion the Tribunal has provided the applicant the benefit of the doubt and accepts that he currently has a plausible number of debts lawfully acquired and that he owes about the equivalent of [amount] Australian dollars for a mortgage, a motorcycle loan and a student loan.
In accepting this as the applicant’s personal financial situation and in making adverse credibility findings about his illicit debt and subsequent threats, the Tribunal finds that the applicant departed Malaysia solely for the purposes to earn money to address these financial difficulties, including a credit card debt which he has repaid, as claimed. It is accepted the applicant has a genuine subjectively held fear that should he return to Malaysia, that he will economically struggle to find suitable employment and not met this repayment obligations to licensed lending financial and other institutions.
The Tribunal notes that the applicant did not claim he was facing foreseeable bankruptcy or that he raised a lawful business loan or that he left Malaysia due to any fears about bankruptcy or his credit worthiness. It also notes that it was open to the applicant to reduce the amount he owes by, for example, selling the motorcycle, which he said he refused to do as he said it was essential for his adult child. It also notes that the applicant has worked his whole adult life with few periods of unemployment; that he has a trade as [an Occupation 1]; and that he is reasonable fit and able to work since he has been in Australia. Furthermore, as discussed in the hearing, there is no country information to indicate that the growing Malaysian economy will adversely affect the applicant’s ability find remunerating employment in order to afford repayments.
The Tribunal assesses that the amount of debt the applicant owes is not a large or considerable amount, although it accepts the amount is notable in size, given the minimum wage is Malaysia (which was recently raised and standardized by the Malaysian government) is about 10,050 Malaysian ringgit per month.[4] While the applicant and his family will face economic and financial challenges in him returning to Malaysia, it does not find that the applicant will not be able to meet these challenges, even when onerous or when it affects his credit worthiness. He will be returning to a household in which there are three adults capable of remunerative work and it remains open to them to restructure the debts so that they are able to live within their means and met repayments of their lawfully acquired debts. The Tribunal does not accept the applicant will be returning to an national economy with a level of lawfully acquired debt in which the applicant and his family has a real chance of facing significant economic hardship, the denial of basic services or the denial of his capacity to earn a livelihood, where the denial threatens his capacity to subsist, in the foreseeable future.
[4] Malaysia raises minimum wage to 1,050 ringgit per monthhttp://investvine.com/malaysia-raises-minimum-wage-to-1050-ringgit-per-month/, Investvine, 6 September 2018,
The Tribunal further finds that there is no persecution arising from these specific claims that involves both systematic and discriminatory conduct as the claimed persecution is not distinguished from fleeing from prosecution or punishment of a law of general application and cannot stamp the applicants with the mark of “refugee”.[5] As the real chance of anticipated and prospective harm arising repaying such debts is not systematic or discriminatory, the Tribunal finds that the applicants does not satisfy any of the elements of subsections.5J (4)(a),(b) or (c). For these reason, the Tribunal finds that the applicant does not satisfies s.5J(1)(a) as the economic and financial circumstances of the applicant and his family are not for any reason based on the applicant’s political opinion, imputed or otherwise, religion, nationality, ethnicity or race or any membership of a particular social group.
[5] Applicant A v MIEA (1997) 190 CLR 225, at 233
In assessing this claim regarding fears of harm arising from the applicant’s accepted economic and financial circumstances, the Tribunal accordingly finds that the applicant does not have any well-founded fear of persecution for any reasons mentioned in s.5J(1)(a), in returning to either their home state of Johor or anywhere else within Malaysia, either now or into the foreseeable future, as required by s.36(2)(a).
In considering the applicant’s accepted economic and financial circumstances against the complementary protection provision of the Act, the Tribunal accepts that the applicant has a real risk of harm if the applicant were to be removed from Australia to his country of reference. However, it is noted that significant harm is different from the concept of serious harm as required by 91R(1)(b)/s.5J(4)(b) in the context of s.36(2)(a).[6] The Tribunal has already made a finding that the applicant and the other adults in his family applicants have the capacity to find work anywhere in Malaysia, that it is open to them to restructure their lawfully acquired debts and make repayments. While the Tribunal acknowledges the applicant and his family will face difficulties and challenges arising from finding work to support themselves if the applicant were to be removed from Australia, it does not accept the applicant will not be able to access paid employment anywhere in Malaysia and meet their lawful debt obligations, 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 in Malaysia’s lending laws or practices or its labour market to inflict significant harm on the applicant and his family. 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, will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment, arising from this economic and financial claims.
[6] 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].
Cumulative Findings
At no stage did the applicant advance any claims of have well-founded fears of persecution or a real risk of significant harm based on his race, ethnicity, political opinion or any other reasons at all. The Tribunal accordingly finds there are no further residual claims to consider in this review application.
Having considered all the claims and accepted circumstances, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance that, if returned to Malaysia, that the applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a), as required by s.36(2)(a).
Having considered the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s36(2)(aa).
Conclusions
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.
…

[2019] AATA 6217

9 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction