1714992 (Refugee)

1714992 (Refugee) [2022] AATA 4141 (7 October 2022)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1714992

COUNTRY OF REFERENCE: Malaysia
MEMBER:Brendan Darcy
DATE:7 October 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 October 2022 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – conversion to Christianity – Seventh Day Adventist – apostasy – mixed religion relationship – physical assault – not wearing the Islamic headscarf – economic hardship – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MZYXS v MIAC [2013] FMCA 13
MZZIA v MIBP [2014] FCCA 717
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Federation of Malaysia (Malaysia), applied for the visa on 27 February 2017. The delegate refused to grant the visa on the basis that the applicant will not suffer a real chance of serious harm, or a real risk of significant ham based on her uncorroborated religious claims to have undergone a conversion from Islam to Christianity, if removed from Australia to Malaysia.
At its Melbourne facilities, the applicant appeared before the Tribunal on 6 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bahasa Malaysian and English languages.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) 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 was born on [date] in Sabah in northern Borneo.
A copy of the biodata page of the applicant’s Malaysian passport is on the Departmental file ([number]).
The applicant’s claims for protection at the time of application were contained in the submitted 866C Form, purporting to have been completed by the applicant. The applicant’s claims state, in summary:
·     The applicant was born a Muslim because it was her parents’ religion.
·     However, as the applicant grew up where she mixed with a Christian friend, and she does not practice Islam anymore because she has changed her religion to Seventh Day Adventist;
·     The applicant cannot convert legally in Malaysia and her family has deserted her and her friends and neighbours are angry with her and hate her.
·     The applicant has had a rock thrown at her and she was punched in the back of the head by her neighbour’s son.
·     There is no safe place for her in Malaysia and if she returns to Malaysia, Muslims will be angry with her and harm her.
·     There is no use making a police report because most police are Muslims and when she tried to complain about being punched in the head, they made fun of her saying that it was her fault.
·     The applicant did not relocate within Malaysia because the applicant did not have a chance to move and she cannot relocate if she returns because Malaysia is a Muslim country and the same mentality and reaction is everywhere.
A delegate acting on behalf of the Minister refused to grant the applicant a protection visa and notified the applicant on 12 July 2017.
On the same day, the applicant validly applied for the delegate’s refusal decision to be reviewed with the delegate’s decision record attached.
The applicant, as mentioned above, attended a scheduled hearing on 6 October 2022. At the end of the hearing, the Tribunal did not require any further submissions.
There are no non-disclosure certificates attached to the applicant’s Departmental and Tribunal files.
Country information: Malaysia
The most recent DFAT country information report into Malaysia is dated 29 June 2021. With regards to religion, religious conversion and apostasy in Malaysia, it relevantly states the following:
RELIGION
3.21 Article 3(1) of Malaysia’s Constitution states ‘Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation’. Article 11(1) states every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.
3.22 The government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim. Some indigenous persons have adopted Islam, but many choose to practise traditional spirituality or Christianity. Ethnic Chinese Malaysians are generally Buddhist, Christian or Taoist, practise traditional Chinese folk religion and ancestor worship, or do not follow a religion. The majority of the ethnic Indian Malaysian population practises Hinduism, although a significant minority practises Christianity.
3.23 According to Malaysia’s last Population and Housing Census in 2010, Muslims comprise 61.3 per cent of the population, Buddhists 19.8 per cent, Christians 9.2 per cent, Hindus 6.3 per cent, and Confucianism, Taoism, and other traditional Chinese religions 1.3 per cent. Other minority religious groups include animists, Sikhs, and Baha’i. Rural areas, especially in the east coast of peninsular Malaysia, are predominantly Muslim, whereas the states of Sabah and Sarawak have relatively higher numbers of non-Muslims. Media estimates approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak, around 65 per cent of whom are indigenous.
3.24 While the Constitution guarantees freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. Laws such as Selangor state’s Non-Islamic Religions (Control of Propagation amongst Muslims) Enactment (1988) control and restrict the propagation of other religions, including non-Sunni versions of Islam. The UN Special Rapporteur in the field of cultural rights raised concerns over a trend of growing religious intolerance in Malaysia in September 2017, particularly toward Muslim minorities
[…][…]
Religious Conversion and Apostasy
3.65 Formally leaving or converting from Islam – apostasy – is extremely difficult. Despite the guarantee of freedom of religion under Article 11 of the Constitution, the civil courts have ruled that they have no power to intervene in apostasy cases that fall under the jurisdiction of Malaysia’s syariah courts.
3.66 Several syariah-based laws apply to Muslims at the state level. State governments do not recognise marriages between Muslims and non-Muslims, and children born of such marriages are considered illegitimate. DFAT is aware of cases where one spouse has (after marriage) converted to Islam, and subsequently claimed that non-Muslim family members have lost all rights to inheritance and custody of children. In January 2018, the Federal Court ruled that both parents had to consent to change a child’s religion (see Family Law). While it is relatively common for individuals to convert to Islam in order to marry a Muslim (according to one report, 9 per cent of all marriages in 2019 were inter-ethnic and about half of those involved a Muslim spouse and thus mandatory conversion), families in some communities may view this negatively.
3.67 Individuals who have attempted to convert from Islam have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts. An individual wishing to convert from Islam must first obtain permission from a state syariah court. The court will declare them an apostate. State syariah courts rarely grant such declarations and, in some states, including Melaka, Pahang, Perak and Sabah, apostasy is a crime punishable by fine, a jail sentence, or caning. DFAT is not aware of cases in which such punishments have been applied in practice. In Kelantan and Terengganu, state laws allow the death penalty for apostasy, although federal law does not allow its implementation. In February 2018, the High Court ruled that only syariah courts could hear cases on conversion from Islam.
3.68 The US Department of State has reported on a number of cases in which individuals who have attempted to convert from Islam, or have otherwise been accused of apostasy, have been compelled to attend religious rehabilitation centres. In 2018, a woman who was suspected of atheism and ‘deviancy’ was reportedly compelled to live in an Islamic rehabilitation centre for six months. In many cases, converts concealed their new beliefs. Religious converts have also reported difficulty changing their religion on their national identification cards.
3.69 Only 168 of 863 Muslims who attempted to convert between 2000 and 2010 reportedly received permission to do so. DFAT has no more recent data on such conversion. In these cases, the syariah courts determined that all 168 applicants had not been Muslim to begin with, which thereby prevented any legal precedent supporting conversion from Islam. The landmark case of Lina Joy, a Muslim who converted to Christianity to marry a Christian in 1998, demonstrated the impediments to conversion from Islam. The federal court found in 2007 that she was legally a Muslim and her religious status could not be removed from her national identity card, as ‘a person cannot, at one’s whim and fancies renounce or embrace a religion’. She was thus unable to marry her Christian partner. Conversely, in December 2015, a 40 year-old man in Sarawak, who had been a Christian until his parents converted to Islam when he was eight years old, received a letter of release from Islam by the civil court on the basis that his conversion occurred when he was a minor, and had no choice in the matter. The civil court judge ruled that the syariah court had no jurisdiction and the ‘Lina Joy’ case did not apply, as he was not a Muslim from birth.
3.70 In January 2020, the NGO G25, a group made of former top-ranking civil servants, released a report titled Administration of Matters Pertaining to Islam, based on research on the background and history of Islamic administration over the years. The group asserted that, as the Federal Constitution guarantees freedom of worship to each citizen of Malaysia, including Muslims, those who insist on leaving Islam (which they discouraged) ‘must not be charged with a criminal offence’. DFAT has not been able to verify whether criminal charges in such cases have been applied in practice. In February 2021, Mohd Na’im, the chief judge of the Perak Shariah court, stated that the country’s Islamic judicial system only had authority over Muslims in Malaysia and could not act on cases of apostasy outside the nation.
3.71 DFAT assesses that Muslims who attempt to convert from Islam or marry a non-Muslim face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert. DFAT is not able to comment on the likelihood, in practice, of punishment for apostasy in states in which apostasy is criminalised.
ASSESSEMT OF CLAIMS AND FINDINGS
Country of reference
On the basis of the copy of the applicant’s Malaysian passport and with no evidence to the contrary, the Tribunal is also satisfied that the applicant is a citizen of the Federation of Malaysia. The Tribunal finds that Malaysia is her receiving country for the purpose of assessing her claims to be assessed under sections 36(2)(a) and 36.(2)(aa).
There is no evidence before it to suggest that the applicant has the right to enter and reside in any other country for the purposes of s.36(3).
Claims and findings
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.
During the course of the hearing, it became apparent that the applicant was not aware of the written reasons in her application form for a protection and would abandon many key claims in that set of claims. At times, she was confused as to the purpose of attending a scheduled hearing for a refused protection visa, stating she was just wanted to remain in Australia and that she was told she would be granted work rights if she followed completed the paperwork she had submitted to the Department. This is understandable given her limited education (see below). Taking this into account, the Tribunal accepts the applicant to have presented at the scheduled hearing as reliable and honest person and has placed much emphasis on her oral evidence as credible.
Based on the applicant’s oral evidence, the Tribunal accepts that the applicant was born into [a] family in a village on the island of [Island 1]. It also accepts that the applicant’s family and [community] on [Island 1] was Muslim by religion.
The applicant further explained that her father had been [an occupation 1] and her mother was preoccupied with home duties and that she had [specified family members]. The applicant also claimed that her parents and siblings had passed away. The Tribunal accepts.
The applicant also claimed to have very limited education whereby she did not finish primary school. However, she claimed to be able to speak [the local language] and speak read and write Bahasa Malaysian and very little English.
The applicant outlined to the Tribunal that when she was [age], she was ostracised from family and community because she ‘looked like a Christian’. She elaborated that the community were upset that she did not wear a hijab or tudung (Islamic headscarf). The applicant relatedly claimed that her family and neighbours were angry with her and she had been physically intimidated and ill-treated at the time. Attacks included humiliating insults, a rock thrown at her and receiving punches to the head. The applicant said she left [Island 1] and never returned. The applicant settled in the township of [Town 1] (about [distance] from Kota Kinnabulla). The Tribunal accepts this account to be credible.
The Tribunal enquired whether the applicant had ever married when living in Malaysia or had any children. The applicant stated / she had not but she had a miscarriage when she was aged [age]. The Tribunal asked whether she had lived in de facto relationship, to which she responded that she lived with a Malaysian man for four years but did not marry as he was Roman Catholic, and not a Muslim, and it was not permitted in Malaysia because she was a Muslim. The Tribunal notes an inter-faith marriage between a Non-Muslim and a Muslim is not permitted either under the civil law or the Syariah law.[1] State governments do not recognise such marriages.[2] A marriage between a Muslim and non-Muslim abroad would not be able to be registered with the Malaysian authorities.[3] The Tribunal accepts this to credible.
[1] Dr M.S. Subramaniam, 'Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia', Center for Asian Legal Exchange (Nagoya University), 1 March 2018
[2] DFAT, ‘DFAT Country Information Report Malaysia’, 29 June 2021, p.31
[3] 'Prohibition of Interfaith Marriage', Law Library of Congress, 1 September 2015, p.13
The applicant claimed that she lived and work in [Town 1] for most of her life in Malaysia where she is working mainly by [doing certain work]. She did not gain a trade or qualification and she lived in rented accommodation. The Tribunal accepts this.
The Tribunal asked the applicant into the reasons she travelled to Australia to which she responded it was because she had difficulties in earning income as [her occupation] and tried to [do other work]. However, she heard that Malaysians could travel to Australia to work on farms. Asked if she had any other reasons for travelling to Australia as outlined in her protection claims, the applicant further responded that she just wanted to work when she arrived in Australia in December 2016 and believed the visa she had lodged in February 2017 would allow her not to return to Malaysia. The applicant stated she could not remember the written claims for protection and that ‘a friend’ has assisted in her written claims. The applicant mentioned she had been evicted from her village and island because they believed she was no longer a Muslim or was an apostate.

The Tribunal enquired whether the applicant formally into Christian, and if so, which Christian denomination. Cagily, the applicant said Catholic friends had brought her into a church. The Tribunal said Muslims visiting churches do not amount to a conversion and asked the question again. The applicant said explicitly that she was Muslim, and she has not converted to any other religion, adding she did not like Islam given her past treatment when she was [age]. The Tribunal pointed about that her written claims stated she converted to Seventh Day Adventism. The applicant said she had followed some Seventh Day Adventists into their places of worship, but she had not converted to that religion and the written claims were incorrect. She acknowledged it was not illegal for Muslims to visit churches. At no stage did she advance she was agnostic or atheistic.
The Tribunal enquired whether there were other reasons she could not return to Malaysia. The applicant said she had experienced negative things in the past. The Tribunal pointed out that these experiences occurred many decades ago and the applicant has lived in Malaysia without being any further incidents of serious harassment or harm based on the persecution or misunderstanding of other Muslims that she was an apostate. In this regard, the Tribunal notes the applicant acknowledged in the hearing that Islamic headscarf was not compulsory in Malaysia and many Malaysian Muslim women choose not to wear the hajib or the tudong.
Based on the oral evidence in which the applicant abandoned the written claims about a conversion from Islam to Christianity and in which she confirmed to the Tribunal that she was born into a Muslim family and remains a Muslim, the Tribunal does not accept the applicant has a well-founded fear of persecution on the basis of being an apostate from Islam to any other non-Muslim religion or no religion at all, should the applicant return to Malaysia in the reasonably foreseeable future.
With regards the Act’s complementary protection, the Tribunal finds for the same reasons that there are no substantial grounds to believe the applicant, as a necessary and foreseeable consequence of being removed from Australian to Malaysia, will suffer a real risk of significant harm arising from being an apostate from Islam to any other religion or no religion.
The Tribunal has considered whether the applicant faces a real chance of serious harm, or a real risk of significant harm based on being imputed as an apostate because she has Christian friends and romantic partners or because she is a Muslim woman who does wear an Islamic headscarf or has visited places of worship other than mosques. The traumatic experience of being harassed and harmed as a young woman for not wearing an Islamic headscarf which led to her leaving her island community was inhumane and extremely humiliating. While no young woman should have been treated this way, it occurred many decades ago and the applicant has not experienced any further severe incidents while living in other parts of Sabah. She did not claim family members or community members from [Island 1] attempted to locate her to further punish her inhumanely. Furthermore, the applicant has claimed that her immediate family members have all passed away. There is no suggestion that the applicant who remains a Muslim has ever been harmed by the authorities about suspected, let alone actual, apostasy, for visiting Christian churches or having Christian friends – which are perfectly lawful activities that do not attract societal or official discrimination. While the Tribunal accepts there is societal pressure on Muslim women in Malaysia to wear traditional attire, it is not compulsory in that country. Moreover, the applicant has not been further harmed in the past because she choses not to wear the hajib or the tudong. While the Tribunal cannot rule out some societal harassment or discrimination based on the applicant being a Muslim who does not wear, the Tribunal does not accept the applicant’s choice in attire amounts to a real chance of serious harm or a real risk of significant harm for the foreseeable future.
Taking the specific circumstances into account, the Tribunal finds that the applicant only as a remote and far-fetched chance – and not a real chance, of serious harm based on the applicant’s religious claim as a Muslim woman imputed with apostasy, if returned to Malaysia. The threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a).[4] Given this, it follows that the applicant faces only a remote or far-fetched risk – and not a real risk, of significant harm based on the same considerations.
[4] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). The Court rejected the submission that ‘real risk’ was a higher threshold which required that the possibility of harm be more likely than not: per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s 36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
Saliently, the applicant had lived in a de facto relationship with a non-Muslim while living in Malaysia. The applicant pointed out that she was not able to marry that Malaysian man as the law prohibits Muslim women from marrying non-Muslim men. The Tribunal accepts the applicant experienced official discrimination in the regard. In its recent report on Malaysia, DFAT assessed that Muslims who marry a non-Muslim face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert. It appears the applicant is among the many Muslims wishing to marry or live with non-Muslim partners move who have avoid adverse attention by living in larger towns such as [Town 1]. The applicant is currently living with a non-Muslim Sabahan who is also Malaysian citizen in Australia. The Tribunal enquired into the reasons the applicant has not married that person in Australia where it is lawful. The applicant stated that she was too old for marriage now, although she has considered it. The Tribunal accepts there is a possibility the applicant could return to Malaysia to live with this non-Muslim man or even another non-Muslim in the event of her current relationship breaking down. It is also possible the applicant could return to Malaysia married to a non-Muslim, where the marriage would not be recognised as legitimate. Even in such circumstances and noting that she has in the past lived in a religiously mixed or inter-faith spousal relationship without any significant incident of harm, the Tribunal assess the applicant could return to Malaysia in the foreseeable future and live in a religiously mixed spousal relationship without official recognition and without a real chance of serious harm and a real risk of significant harm arising from these foreseeable scenarios about her marital status in returning to Malaysia.
When considering the applicant’s overall claims for protection arising from her religion and marital status as outlined above, the Tribunal notes that the applicant did not claim travel to Australia because of these claims. She explicitly stated she travelled to Australia and applied for a protection visa for work purposes and not because she had any urgent or deep fears of persecution. The applicant holds some genuine fears about the impact of official and societal religious discrimination. However, the applicant did not have well-founded fear of persecution based on her accepted religion as a Muslim woman, her marital status or any imputed of suspected apostasy from Islam or lack of religious rigour, subjectively understood, at the time of application and at the time scheduled hearing.
It follows from this that the Tribunal does not accept the applicant does not hold a well-founded of fear, subjectively understood, based on her religion and marital status and for any other related reasons mentioned under s 5J(1)(a) if she were to return to Malaysia into the foreseeable future.
Objectively speaking and considering the low impact of societal and official discrimination to be encountered by the applicant based on her accepted religious circumstances, the Tribunal finds that the applicant will face only a remote or far-fetched chance - and not a real chance, of serious harm based on the applicant’s accepted religion, her marital status and any other related reasons mentioned under s 5J(1)(a), should she return to Malaysia.
In this regard, the Tribunal does not have a well-founded fear of persecution based on her religion pursuant to s 36(2)(a).
Having made a finding that the applicant has only a remote or far-fetched chance of serous harm based on religion, the Tribunal has substantial reason to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to her country of reference, will suffer a remote or far-fetched risk of significant harm, but not a real risk of significant harm based on these religious claims, cumulatively considered, as required by s 36(2)(aa).
The Tribunal has considered the applicant’s residual claim that she fears a degree of economic destitution in returning to Malaysia.
In this regard, the Tribunal notes that the applicant has a number of friends in Sabah and that she as the support of her current partner and his family. These personal aspects of the applicant arose during the hearing. The Tribunal also discussed with the applicant that she has been working in Australia and is not plausible that she will not be able to find employment in Malaysia. Furthermore, the applicant conceded that she is likely to be eligible for the Malaysian pension which provides a basic income for eligible aged Malaysian citizens. Social security support in Malaysia includes that country’s non-contributory old-age pension for those aged 60 with no financial support from other family members. This amounts to about 350 Malaysian ringgits a month.[5] While the applicant does not have immediate family members to assist her, neither does she have any dependants for whom she is responsible.
[5] Social Security Programs Throughout the World: Asia and the Pacific , 2018, Malaysia, US Social Security Administration, >
The Tribunal accepts there is the applicant has a real chance in facing financial difficulties and challenges in returning to Malaysia. These include finding accommodation, employment and access Malaysia’s pension system. However, the applicant will not face a real chance of harm arising from significant economic hardship, being denied access to any basic services or that she will be denied the capacity to earn a livelihood of any kind that threatens her capacity to subsist by returning to anywhere in Malaysia. Having a real chance of such challenges - either individually or cumulatively, does not amount to the applicant facing serious harm as listed non-exhaustively under s 5J(5) and as required by s 5J(4)(b). Neither does the applicant facing such harm involve any systematic and discriminatory conduct for one of the reasons outlined under s 5J(1)(a), should she return to Malaysia.
The Tribunal has considered if there are any substantial reasons to believe the applicant will face a real risk of significant harm arising from the applicant’s overall financial circumstances as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as required by 91R(1)(b) in the context of s.36(2)(a).[6] The Tribunal has already made a finding that the applicant has the capacity to find remunerative employment anywhere in Malaysia and has a real chance of being eligible for its non-contributory and that she does not face a real chance of serious harm based on these specific claims. While the Tribunal acknowledges the applicant will face a real risk of difficulties and challenges arising from finding work to support themselves if removed from Australia, it does not accept the applicant will not be able to access paid employment or social security anywhere in Malaysia, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s36(2A).
[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].
Furthermore, the Tribunal finds there is no intention on the part of the governance of the Malaysian economy in combination with market forces, to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. 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, based on the applicant’s financial circumstances will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment.
In this regard, the applicant does not meet the criterion set out under the s 36(2)(aa).
Cumulative findings
At no stage did the applicant’s advance she holds any further fears based on her religion, her [ethnicity] or as a Malay speaking Malaysian, her nationality, her political opinion or membership of a particular social group or any other reasons that has not been addressed above. There are no more residual claims to consider in this matter.
Having cumulatively assessed all the applicant’s claims and accepted circumstances, the Tribunal finds that she does not face a real chance of serious harm, now and into the reasonably foreseeable future. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1)(a), (b) or (c) if she is returned to Malaysia.
Therefore, the Tribunal is also not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
Based on the applicant’s accepted circumstances, both individually and cumulatively considered, 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 the Federation of Malaysia, she will suffer a real risk of the kinds of significant harm listed under s 36(2A).
Accordingly, the applicant does not satisfy ss 36(2)(aa).
Conclusion
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.
…
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.
…

[2022] AATA 4141

7 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal