1711941 (Refugee)

[2020] AATA 5971

1711941 (Refugee) [2020] AATA 5971 (29 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711941

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Jason Harkess

DATE:29 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the Applicants Permananet Protection (Class XA) (Subclass 866) visas.

Statement made on 29 November 2020 at 7:48pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – disapproval of marriage – fears harm from family members – no well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994

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 dependants.

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Protection Visa Refusal – Application for Review

1. The Applicants are citizens of Malaysia. They seek review of decisions made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’)[1] refusing to grant them protection visas. The First Applicant is [age] years of age. The Second Applicant is [age] years of age and is the spouse of the First Applicant.

   [1] The Minister for Immigration and Border Protection is now known as the Minister for Home Affairs.

2. The Applicants originally applied for the protection visas on 13 December 2016. Their visa applications were refused by the delegate on 1 May 2017. The Applicants lodged their review application with the Tribunal on 5 June 2017.

Type of Visa

1. The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

2. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia and that they are either:

   (a)a person in respect of whom Australia has protection obligations because the person is a ‘refugee’ (‘the refugee criterion’);[3]

   (b)a person in respect of whom Australia has protection obligations because of other ‘complementary protection’ grounds (‘the complementary protection criterion’);[4] or

   (c)a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member protection criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

Reasons for Initial Refusal

1. In their original application form lodged with the Department, the Applicants sought protection visas claiming that they met either the refugee criterion or the complementary protection criterion or, in the case of the Second Applicant, that she met the family member protection criterion. The delegate was not satisfied that they met any of the criteria. The delegate therefore refused the visa applications.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicants when they were notified of the delegate’s decision on 1 May 2017.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the Applicants’ review application:

   (a)whether either applicant meets the refugee criterion; or

   (b)whether either applicant meets the complementary protection criterion.

2. If either the First or Second Applicant meets either of these criteria, then the other applicant may meet the family member protection criterion. However, this issue only arises if one of the applicants meets the refugee or complementary protection criteria.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 18 December 2019. The Applicants appeared at the hearing in person to give evidence and present arguments.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicants protection visas ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the Applicants’ original written visa applications;

   (c)the oral evidence and arguments of the Applicants presented at the hearing;

   (d)all written material filed by or on behalf of the Applicants in relation to this case;

   (e)other relevant documents on the Tribunal and Department files;

   (f)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[6]

   (g)country information assessments relating to Malaysia that have been prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes.[7]

   [6] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [7] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has found to be materially significant to the determination of the issues in the case.[8]

CONSIDERATION OF APPLICANTS’ CASE

[8] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271

Original Protection Visa Applications

1. The Applicants were obliged to complete a form when they lodged their protection visa applications. The form requested that each applicant provide details about their personal background and their circumstances leading up to their arrival in Australia and their applications for protection visas. The form also requested that each applicant set out their reasons for seeking a protection visa.

Applicants’ Background

1. The Applicants arrived in Australia [in] September 2016, having been granted [temporary] visas. Such visas [permit] the visa holder to remain in Australia on a temporary basis. The Applicants applied for protection visas at around the time their [temporary] visas were due to expire.

2. The Applicants were both born in Malaysia and are citizens of Malaysia by birth. They are both of the Malay ethnicity and belong to the Muslim faith. The Applicants married [in] February 2014. They each provided copies of their passport to the Department which verify their identities and citizenship.

Protection Claims

1. The following questions were specifically posed in the protection visa application form, to which the following answers were provided by the each applicant (grammatical and expressional errors reproduced, verbatim):

   89. Why did you leave that country(s)?

   First Applicant: I have been married with [second applicant] for more than two years. Since we were married, we still can not have a child. [Her] family tried to separate us since last year. Her parents want a grandchild from our married but as two years past, her parents doesn’t believe that I can give them a grandchild. They forced me to divorced [her] as they thought [she] doesn’t happy to live a life with me. I have been mentally abused by moth of her parent and I have been physically harmed by [her] uncle and his son. I try to save my married with [her] from being disturb by them and come here to seek protection and begin a new life her.

   Second Applicant: I leave Malaysia because I have been forced to demand a divorce from my husband by my parents and uncle. My husband [also] been brutally abused by my cousin [Mr A] and his father. [Mr A] forced me to marry him and leave my husband as he said my husband cant give me a child and happiness. My husband and I came here to seek protection against my parents and [Mr A] and try to find a new life here in Australia.

   90. What do you think will happen to you if you return to that country(s)?

   First Applicant: [my wife]’s parents will try to separate us and let [her] or force her to marry [Mr A] (her cousin). If I return to Malaysia , im scared anything bad will happen to our marriage. [Mr A] should married with [her] instead of me but [she] choose me because she knew [Mr A] a hot tempered guy. [Mr A] and his father once harmed me by punch me in the face so I think they will try to do it again home I return to Malaysia.

   Second Applicant: If I return back to the county I will be separated from my husband. They tried to separated us before and I think they will try do it again.

   91. Did you experience harm in that country(s)?

   First Applicant: Yes: It happened when I still working as [occupation] last july. [Mr A] and his father came to my workplace and forced me to sign divorce agreement for my marriage with [her]. As I don’t responded to them and I don’t follow what they needed me to do, they punched me and warned me to think again. 

   Second Applicant: No

   92. Did you seek help within that country(s) after the harm?

   First Applicant: No: I don’t seek any help from Malaysia’s authority because I don’t want this incident to become viral and embarrassed my family as well. I don’t want people to judge my wife and me as we can not have child after 2 years of marriage.

   Second Applicant: No response recorded

   93. Did you move, or try to move, to another part of that country(s) to seek safety?

   First Applicant: Yes: I tried to move to [Johor], Malaysia but it to hard for me to find a decent job in this time of Malaysia. As my wife doesn’t work anymore, I can not bear to pay all the expense by myself. I can not pay for the house rental as well.

   Second Applicant: Yes: I tried to move to [Johor], Malaysia with my husband but because we cant afford the house and rental we can not move there. I’m a housewife and can not find a decent job over there.

   94. Do you think you will be harmed or mistreated if you return to that country(s)?

   First Applicant: Yes: As I stated before, [Mr A] will try to find me and harmed me like what happened in last july. I’m fear that be will do much more other than a punch. I’m scared it he and his father will do the same to my wife and force [her] to demand a divorce from me.

   Second Applicant: My parents will separated my husband and me. My cousin, [Mr A] also will do anything to make sure my husband divorce me.

   95. Do you think the authorities of that country(s) can and will protect you if you go back?

   First Applicant: No: the authorities such as Royal Malaysia Police (RMP) will not take this problem seriously as it a family matter and should be solved within the family.

   Second Applicant: This is a family matter problem so I don’t think Malaysia authority will help or give protection to me and my husband.

   96. Do you think you would be able to relocate within that country(s)?

   First Applicant: No: Malaysia authorities wont relocate my wife and me as they have bigger problem they need to handle.

   Second Applicant: No: It is hard to relocate my husband and me within Malaysia as Malaysia authorities doesn’t take his problem as serious problem. The family matter should be solve within the family.

Evidence Given at Tribunal Hearing

1. At the hearing before the Tribunal, the Applicants gave evidence that was in many respects consistent with their claims in their original applications.

2. A summary of the evidence given by the First Applicant at the hearing is provided as follows:

   (a)The First Applicant confirmed the truth of his answers contained in his original protection visa application form.

   (b)The First Applicant maintains contact with his family in Malaysia but contact has been less frequent since being in Australia.

   (c)The courtship between the First and Second Applicants in Malaysia took longer than is customary – five years instead of the usual two years. While the Second Applicant’s family was initially supportive of the marriage of the First and Second Applicants, in the latter part of the courtship tensions began to emerge. This was apparently due to financial struggles the First Applicant was facing and other reasons. Eventually, the Second Applicant’s parents identified a more suitable husband for their daughter to marry, who was a distant cousin of the Second Applicant.

   (d)The First and Second Applicants went ahead with their marriage despite the disapproval of it by the Second Applicant’s parents. The Second Applicant was stressed by the pressure from her side of the family. The First Applicant had to care for the Second Applicant because the stress of the situation affected her so much. He was continuously concerned for her mental health. The lack of a child being produced by their marriage appeared to aggravate the tension between the Applicants and the Second Applicant’s family.

   (e)There was one physical altercation between the First Applicant and the suitor chosen by the Second Applicant’s parents that occurred in Malaysia. It occurred about one year before the Applicants departed Malaysia for Australia. The suitor punched the First Applicant in the face with a closed fist. He was only punched once. There were no visible or lasting injuries. The First Applicant did not report the matter to police. He did not seek medical attention. He was embarrassed by the incident and had other things on his mind, which is why he did not pursue the matter formally with authorities.

   (f)If the Applicants were to return to Malaysia, the First Applicant believes that the Second Applicant’s family will again put pressure on her to separate from the First Applicant in order to marry the suitor that has been chosen for her. The First Applicant fears for the Second Applicant’s mental health in this regard. He believes that her mental health has considerably improved since being in Australia. He also fears for his job prospects if they were to return to Malaysia.

3. As summary of the evidence given by the Second Applicant at the hearing is provided as follows:

   (a)The Second Applicant confirmed the truth of her answers contained in her original protection visa application form.

   (b)She has maintained contact with her family since coming to Australia. They disapprove of her marriage to the First Applicant. However, they have not asked her to return to Malaysia.

   (c)She believes that her parents may eventually accept the marriage between herself and the First Applicant if she eventually has a child with the First Applicant. At this point, the Second Applicant believes they may be able to go home. She said she believes if she and the First Applicant return home with a child, and demonstrates that they have established a comfortable life, her family will accept the marriage.

   (d)She and the First Applicant did not consider getting the police involved in relation to the physical altercation that the First Applicant had with her distant cousin because it was not considered sufficiently serious.

Country Information

1. DFAT most recently published an information report about Malaysia in December 2019. That report provides the following information that is relevant to the Applicant’s case on review:[9]

   (a)Malaysia is an upper middle-income, export-oriented economy. In 2018, its real GDO growth was 4.7%, while per capita GDP was USD10,942 (AUD14,630).[10]

   (b)The Malaysia Department of Statistics reported a labour force participation rate of 68.6% in June 2019. Unemployment was reported at 3.3% in February 2019.[11]

   (c)Malaysia has a professional and effective police force, the Royal Malaysia Police.[12]

   [9] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia (13 December 2019).

   [10] Ibid [2.9].

   [11] Ibid [2.12].

   [12] Ibid [5.5].

2. The Tribunal has also given consideration to the DFAT report about Malaysia that was published on 19 July 2016,[13] being the report on Malaysia most proximate in time to the Applicant’s original departure from her home country. The relevant information contained in this earlier report is consistent with, though less detailed than, the more recent report published in December last year.

   [13] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia (19 July 2016).

Analysis of Evidence and Factual Findings

Assessing Credibility – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[14]

   [14] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal is mindful of the difficulties faced by protection visa applicants, including issues related to the use of interpreters, and nervousness and anxiety in a formal Tribunal hearing setting. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions posed by the Tribunal. The nature of their claims, if genuine, may cause them some consternation in giving evidence and expressing their fears to the Tribunal. There may also be genuine reasons for applicants not being able to produce documents to corroborate their claims, in circumstances where one might expect such supporting documents to exist.

3. If the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt where they are unable to fully substantiate all of their claims.[15] However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[16] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[17]

   [15] Ibid [15.4].

   [16] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [17] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[18] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[19]

Veracity of Applicant’s Claims and Factual Findings

[18] MIEA v Guo (1997) 191 CLR 559, 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

[19] Migration Act 1958 (Cth), s 5AAA(2).

1. The Tribunal is satisfied that the Applicants are citizens of Malaysia and of their general personal background as described by the Applicants in their evidence. In this respect, the Tribunal makes the following findings:

   (a)The Applicants are citizens of Malaysia.

   (b)Malaysia is the country of reference for the purpose of assessing them against the criteria for the grant of a Subclass 866 visa.

   (c)The Applicants fear returning to Malaysia because the Second Applicant’s family does not approve of the Applicants’ marriage.

   (d)The First Applicant was punched in the face by the suitor identified by the Second Applicant’s family before they left Malaysia. However, there were no serious or lasting injuries arising from this punch and the Applicants did not consider the matter sufficiently serious to report to police.

   (e)The Applicants believe they will be in a better position to return to Australia once they are financially more comfortable and once they have a child. If that occurs, they will no longer have a fear of returning to Malaysia. If they return before that time, they will be in fear of the interactions that are likely to be had with the Second Applicant’s family.

Does the Applicant Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who 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 return to avail himself or herself of the protection of that country.’[20]

   [20] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. There are various definitions found in the Oxford English Dictionary, which include a very general definition of ‘an injurious act’, and a more specific definition of ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[21] However, within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee.

   [21] ‘persecution, n.’, OED Online (Oxford University Press, September 2020, >

   First, the Act provides that a person is only considered to have ‘a well-founded fear of persecution’ if three criteria are satisfied:

   (a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[22] and

   (b)there is a real chance that, if they are returned to their home country, they would be persecuted for one or more of those reasons;[23] and

   (c)the real chance of persecution relates to all areas of the receiving country.[24]

   [22] Migration Act 1958 (Cth), s 5J(1)(a). The term ‘social group’ is further explained in s 5K (where the social group consists of an applicant’s family) and s 5L (where the social group consists of persons other than the person’s family). In relation to the latter, a shared ‘characteristic’ amongst its members, other than a fear of persecution, is what essentially defines a social group.

   [23] Migration Act 1958 (Cth), s 5J(1)(b). The Act refers to an applicant’s home country as either a country of which they are a national or, if they have no nationality, a country of their former habitual residence. Collectively, such countries are referred to as a ‘receiving country’ for the purposes of Australia’s protection visa laws. For ease of reference and understanding, in the present review application the Tribunal considers it appropriate to refer simply to the Applicant’s ‘home country’ in its decision.

   [24] Migration Act 1958 (Cth), s 5J(1)(c). 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-5LA.

3. Secondly, on the assumption that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following further three requirements:

   (a)the identified reason(s) for the persecution must be the essential and significant reason(s) for the persecution;[25] and

   (b)the persecution must involve serious harm to the person;[26] and

   (c)the persecution must involve systematic and discriminatory conduct.[27]

   [25] Migration Act 1958 (Cth), s 5J(4)(a).

   [26] Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: 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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

   [27] Migration Act 1958 (Cth), s 5J(4)(c).

4. Thirdly, the Act prescribes the following circumstances in which a person is taken not to have a well-founded fear of persecution:

   (a)if effective protection measures are available to the person in their home country;[28] or

   (b)if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country.[29]

   [28] Migration Act 1958 (Cth), s 5J(2). Section 5LA(1) states that ‘effective protection measures’ are available to a person if: (a) protection against persecution could be provided to the person by the relevant State or 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 is willing and able to offer such protection. Section 5LA(2) states that such a State, party or organisation 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.

   [29] Migration Act 1958 (Cth), s 5J(3). Such behavioural modifications contemplated by s 5J(3) are specified to not include modifications that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic of the person. See s 5J(3)(a)-(c).

5. Fourthly, in determining whether a person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Tribunal they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.[30]

   [30] Migration Act 1958 (Cth), s 5J(6).

6. Beyond these statutory prescriptions, determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[31] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[32] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[33]

Do the Applicants Have a Well-Founded Fear of Persecution?

[31] MIEA v Guo (1997) 191 CLR 559, 574.

[32] Ibid 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future’.

[33] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. In this case, the Tribunal does not accept that either the First or Second Applicant has a well-founded fear of persecution as contemplated by the Act. The fear they have arises from the disapproval of the Second Applicant’s family in relation to their marriage. The Tribunal has taken into account the events that they have described, but ultimately finds that there is no real chance that either will suffer serious harm if they were to return to Malaysia. Accordingly, neither the First nor Second Applicant meets the refugee criterion.

Does the Applicant Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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 [they] will suffer significant harm’.[34]

   [34] Migration Act 1958 (Cth), s 36(2)(aa).

2. Section 36(2A) provides that a person will suffer ‘significant harm’ if:

   (a)they will be arbitrarily deprived of their life;[35] or

   (b)the death penalty will be carried out on them;[36]

   (c)they will be subjected to torture;[37] or

   (d)they will be subjected to cruel or inhuman treatment or punishment;[38] or

   (e)they will be subjected to degrading treatment or punishment.[39]

   [35] Migration Act 1958 (Cth), s 36(2A)(a).

   [36] Migration Act 1958 (Cth), s 36(2A)(b).

   [37] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning 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 International Covenant on Civil and Political Rights (‘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.

   [38] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning 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. It 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.

   [39] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment or punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

3. However, s 36(2B) further provides that there is taken not to be a real risk that they will suffer significant harm in a country if the Tribunal is satisfied that:

   (a)it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;[40] or

   (b)they 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;[41] or

   (c)the real risk is one faced by the population of the country generally and is not faced by the person personally.[42]

Tribunal Not Satisfied Criterion Met

[40] Migration Act 1958 (Cth), s 36(2B)(a). Whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. See SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.

[41] Migration Act 1958 (Cth), s 36(2B)(b). The level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

[42] Migration Act 1958 (Cth), s 36(2B)(c).

1. For the reasons that have been set out above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the either the First or Second Applicant will suffer significant harm.

Conclusion

1. The Tribunal is not satisfied that either the First or Second Applicant meets either the refugee criterion or the complementary protection criterion.

DECISION

1. The Tribunal affirms the decisions not to grant the Applicants Permanent Protection (Class XA) (Subclass 866) visas.

Dr Jason Harkess

Member