1712038 (Refugee)

[2020] AATA 3912

1712038 (Refugee) [2020] AATA 3912 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712038

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Sheridan Lee

DATE:16 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 September 2020 6:05 pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – poor economic situation – working in Australia to pay for parents’ medical treatment – ethnicity – Indian Tamil – country information about economy and ethnic discrimination – low-level official and societal discrimination does not amount to harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASE

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 dependants.

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 29 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is [an age]-year-old Tamil man from Malaysia. He applied for the visa on 1 February 2017 in order to remain in Australia and escape the poor economic situation in Malaysia. The delegate refused to grant the visa, noting that there is no obligation under international law to provide protection to people fleeing violations of economic, social or cultural rights. The fact that a person may enjoy less-favourable social, economic or cultural rights, does not of itself give rise to non-refoulement obligations.

3. The Tribunal viewed a copy of the applicant’s Malaysian passport. I accept that the applicant is a citizen of Malaysia and will assess the applicant’s claims against Malaysia as his country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes. I also find that the applicant cannot avail himself of a right to enter and reside in a third country.

4. The applicant appeared before the Tribunal on 30 June 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have 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

11. The applicant first arrived in Australia on 23 November 2016 on a Subclass 601 Electronic Travel Authority visa. He applied for protection on 1 February 2017. The application for protection form outlined that the applicant was not concerned that anything bad would happen to him if he returned to Malaysia. Nevertheless, he intended to stay and work in Australia due to the poor economic situation at home.

12. The applicant applied for merits review of the decision to refuse his protection application on 6 June 2017. A copy of the delegate’s decision was provided with the application.

13. At the Tribunal hearing, the applicant gave evidence that he was born in Selayang, Selangor. He identified as Tamil and advised that he speaks the language along with some English and Malay. The applicant outlined that he completed a Diploma in [Subject] after high school. He worked as [an Occupation 1] once he was qualified until he was made redundant. The applicant then worked [doing a job task]. In Australia, the applicant works at the [Employer] in [Town].

14. Prior to departing Malaysia, the applicant stated that he lived in Perak with his parents. The applicant gave evidence that he is married. His wife remained in Malaysia and is currently living in Klang.

15. When asked why he was concerned about returning to Malaysia, the applicant explained that his mother and father both underwent surgery and are unwell. He has been sending money to his parents to assist with medical expenses.

16. The applicant gave evidence that his mother had [surgery]. She was later diagnosed with [another issue and had further surgery]. Since then, she has check-ups and takes medicine. She cannot do any paid work and experiences [medical] issues. The applicant went on to explain that his father has diabetes and wounds on his legs. Every month he has to attend a clinic to monitor his wounds. The applicant’s father has high blood pressure, takes medication and cannot work.

17. The applicant explained that there is no risk to his life, but there is risk to the life of his parents. The applicant explained that it was his intention to come to Australia to earn money and support his parents with their treatment. Then one day, if he performed well in his work, he could bring his parents to Australia. The applicant alleged that hospitals in Malaysia don’t treat patients well and medical treatment is better in Australia.

18. In addition, the applicant gave evidence that his wife had been unable to find employment since she completed her studies three years ago. Her family is suffering financial constraints and the applicant outlined that he is sending money to support his wife also.

19. The applicant stated that he travelled to Australia because it was difficult to find work in Malaysia. He expressed a belief that Tamils are not given priority in terms of job selection and there are no human rights in Malaysia.

20. The applicant explained that when he came to Australia, he had no knowledge of immigration laws. A friend guided him to apply for a protection visa, saying that he could stay indefinitely and work. The applicant explained that if he had understood the true nature of the visa he would not have applied for it. The applicant gave evidence that he subsequently applied for a work visa with assistance from a friend he referred to as [Miss A], however he was unable to get additional work rights on his current bridging visa. He also enquired about whether his wife might qualify for a student visa, but the cost is high and the migration agent advised that she may not be successful. The applicant expressed a belief that his employer would be willing to sponsor him for a work visa.

21. I asked the applicant if he ever felt that he was discriminated against on the basis of being Indian-Tamil. In response, the applicant explained that when he finished work [late], there would be roadblocks at that time. The police would treat him harshly – ask him to show his ID, get out of the car and make him stand there for some time and talk to him harshly. They would check the car thoroughly and treat him differently because of his dark skin.

    FINDINGS AND REASONS

22. I accept that the applicant is a Malaysian man of Indian-Tamil ethnicity. Although he provided no documentary evidence, I have provided the applicant with the benefit of the doubt and accept that he sends money to his ill parents and wife in Malaysia. For the reasons below, I do not accept that there is a real chance or real risk that the applicant would face serious or significant harm for political, economic or any other reason if he were to return to Malaysia now or into the reasonably foreseeable future.

23. The Department of Foreign Affairs and Trade (DFAT) Country Information Report on Malaysia[1] outlines that:

    the World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capita GDP was USD10,942 (AUD14,630). 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 (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, which predominantly consists of Bumiputera. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The UNDP’s Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing it in the ‘high human development’ category…

    The Malaysian Department of Statistics reported a labour force participation rate of 68.6 per cent in June 2019, while in February 2019 the Malaysian Department of Statistics reported an overall unemployment rate of 3.3 per cent. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians…

    Indian Malaysians constitute the third largest ethnic group in Malaysia. The Malaysian Department of Statistics estimates there were 2.01 million Indian Malaysians in Malaysia in 2018, making up over six per cent of the population. Indian Malaysians predominantly live in major urban centres, including within Kuala Lumpur, Penang, Negeri Sembilan, Selangor and Perak in peninsular Malaysia. While more than 50 per cent of Indian Malaysians were employed in low-income jobs as of 2015, they also represented a high proportion of professionals (15.5 per cent in 2010), including 38 per cent of the entire medical workforce.

    [1] 13 December 2019.

24. DFAT assesses that Indian Malaysians face low levels of official discrimination when attempting to gain entry into the state tertiary system or the civil service.

25. When I discussed the DFAT advice regarding the situation for Indian-Malays, the applicant explained that he understood, but still felt it was an unfair situation as some jobs have quotas and once the quotas are full extra people don’t get an opportunity, he explained that this is why his wife can’t find full-time employment, just casual positions here and there.

26. I note that the applicant was previously able to find work as [an Occupation 1] and [an Occupation 2] before coming to Australia. He speaks multiple languages and now has additional working experience here in Australia. While I acknowledge that the employment available to the applicant would involve lower wages than those he could earn in Australia, I am not satisfied that the applicant would be unable to find any work at all, such that his ability to subsist was compromised if he returned to Malaysia now or in the reasonably foreseeable future. 

27. Considering the available evidence, I am not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood for any reason, including for reason of his ethnicity, religion or lack of education, such that his capacity to subsist would be threatened. I accept that the applicant is concerned about being able to support himself and his family, but find that he would be able to do so by finding employment in Malaysia (albeit at a lesser rate than he has been able to do in Australia).

28. While I can accept that Indian-Malays may face some low-level discrimination in day to day life, the combination of the DFAT information and the applicant’s evidence leads me to conclude that he does not face a real chance of serious or significant harm on account of his Indian Tamil ethnicity. I further consider that he would be free to practice his religion.

    Refugee Assessment

29. For the reasons given above, I find that the applicant does not have a well-founded fear of persecution as required by s.5J for any of the grounds advanced and therefore find that he is not a refugee within the meaning of s.5H. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary Protection Assessment

30. For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[2] I find that there are no 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 he will suffer significant harm: s.36(2)(aa).

    [2] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.

31. To the extent that that the definitions of ‘serious harm’ and ‘significant harm’ differ, I am satisfied that economic hardship falling short of denial of the ability to subsist and/or employment discrimination in some workplaces or educational sectors where Bumiputera may be the subject of affirmative action policies, where the applicant is an Indian-Tamil, do not constitute ‘significant harm’ of the kind contemplated by ss 36(2A) and 5(1).

32. 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

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

    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.

    …