1714356 (Refugee)

[2019] AATA 6215

1714356 (Refugee) [2019] AATA 6215 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714356

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Sean Baker

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 August 2019 at 3:20 pm (VIC time)

DATE OF WRITTEN RECORD:                9 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

REFUGEE – protection visa – Malaysia – social group – economic instability – unemployment – student debt – economic situation in Malaysia has improved – failed to demonstrate harm – did not fear harm on return – applicant conceded he may find job on return – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 36
Migration Regulations 1994 (Cth), Schedule 2

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 April 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 August 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in the application of [name deleted], AAT reference 1714356. The criteria for a protection visa is set out in section 36 of the Migration Act and schedule 2 of the Regulations, the applicant is either a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds.

4. I have taken into account, where relevant, the policy guidelines prepared by the department on refugee law and complementary protection, and the country information assessment prepared by the Department of Foreign Affairs and Trade. 

5. I turn now to my findings.  The applicant claims to be a citizen of Malaysia and has provided a copy of his passport to the department.  The Tribunal finds the applicant is a national of Malaysia which is also his receiving country.  There is no evidence before the Tribunal to suggest the applicant has a right to enter and reside in any third country. 

6. I turn now to the applicant’s claims.  In the application for protection the applicant said he was seeking protection in Australia so he did not have to return to Malaysia.  He said he had left Malaysia because he was looking for a better life and it was hard to find a job in Malaysia at that time.  When asked what he thought would happen to him if he returned, he said he was not really sure but he felt peaceful here.  When asked if he had experienced harm in Malaysia he ticked no and wrote “not applicable” for the following questions. 

7. The applicant has given consistent and somewhat more detailed evidence at the two hearings that he has attended.  At the evidence-gathering hearing and before me today the applicant made consistent claims.  He said he understood the written claims he had made and did not wish to make any changes to those. 

8. He said he had lived in Kelantan before coming to Australia.  He said he had completed a degree in [a course] in [another country] where he lived for five years, he said he had a student loan of around [amount] which he has to pay back to [an organisation].  He said he had not worked in Malaysia, he had applied for many jobs but had been unsuccessful.  He had been supported by his family to study.  He chose Australia as people said it was easy to get a job and he has been working in Australia in a [business].  On leaving Malaysia he did not have any problems with the police or authorities, he had no difficulties getting his passport or departing Malaysia. 

9. When asked what would happen on return to Malaysia he said “Nothing really” except he had to settle his debt.  He said he sent money home to Malaysia and a small proportion of that went towards paying off the student debt.  He said there was no other reason he could not return to Malaysia.  Before me the applicant confirmed this evidence and gave evidence consistent with this.  He said he did not fear harm on return to Malaysia, nor did he think there was any risk he would be harmed on return.  He indicated he could pay the student loan back in instalments, he said he would not be able to pay it all in one go but could in instalments.  He conceded he may have more chance of finding a job in Malaysia now that he has work experience in Australia.  He said there were no other reasons he had left Malaysia and confirmed he had not had trouble with the authorities.  He said no one would harm him on return. 

10. When I noted to the applicant that I might think he could return and nothing would happen to him as he had claimed, he did not comment.  I put to the applicant country information that Malaysia is classified as an upper-middle-income economy with real GDP growth of 5.4 per cent in 2017 and that the oil price had recovered since he had left Malaysia.  I noted this might lead me to further consider he would have a good chance of finding a job; again, the applicant did not comment.  The applicant said there was nothing further he wished to say.  The applicant said there was no reason I should not give a decision today and said that he had said everything he needed to.

11. I have carefully considered the claims of the applicant.  I find the applicant has failed to demonstrate he would suffer any chance of serious harm on return to Malaysia, nor that he faces a real risk of significant harm on return.  I accept the applicant has a student debt of approximately [amount] which, as the applicant said, can be paid back in instalments.  I find that he has worked in Australia.  I find the country information indicates Malaysia is a middle-income country with a reasonable rate of economic growth and the economic situation of Malaysia has improved since the applicant left.  I find that having worked in Australia he faces reasonable prospects of finding a job on return to Malaysia.  I find he could find work.  I find the applicant can return to Malaysia and pay off his student loan in instalments. 

12. On the basis of these findings I do not accept there is a real chance or a real risk of him being harmed by anyone for any reason connected to his student loan, his capacity to find a job or for any other reason.  I therefore find there is no real chance the applicant will be seriously harmed for any reason on return to Malaysia now or in the reasonably foreseeable future. 

13. I turn now to consider complementary protection.  The court has found the real risk test imposes the same standard as the real chance test.

14. The court has held that the real risk test is the same standard as the real chance test.  For the reasons that I have already given whilst I have accepted that the applicant has a student debt of approximately [amount], I find that he can pay this loan in instalments, that he has worked in Australia and that the economic situation in Malaysia has improved since he left.  I find that he could find work in Malaysia.  Therefore I do not accept he would be significantly harmed on the basis of these things.  The applicant has not claimed to face a real risk of significant harm for any other reason on return. 

15. Noting the findings as detailed above, it follows that I am not satisfied that there are substantial grounds for me to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk the applicant will suffer significant harm. 

16. Taking the applicant’s claims at their highest level, the Tribunal finds the applicant has not established he will be seriously or significantly harmed for any reason. For the reasons given above the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). I have considered the alternative criterion. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa). There is no suggestion the applicant satisfies the alternative criteria in section 36. Accordingly the applicant does not satisfy the criterion in section 36(2).

17. The decision of the Tribunal therefore is that the Tribunal affirms the decision not to grant the applicant a protection visa.  The time is 3.20 pm on 23 August. 

    DECISION

18. The Tribunal affirms the decision under review.

    Sean Baker
    Member