1716379 (Refugee)

[2022] AATA 5003

1716379 (Refugee) [2022] AATA 5003 (7 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716379

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Damian Creedon

DATE:7 December 2022

PLACE OF DECISION:  Perth

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

Statement made on 07 December 2022 at 2:56pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of economic harm as jobseeker with criminal history, and from head of drug syndicate – associate shot because of drug debt – arrests and releases after payments of bonds by mother – low-paid work insufficient to support himself – now married with young child – no current debts or risk of arrest or detention – not a member of a particular social group for purposes of legislation – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Morato v MILGEA (1992) 39 FCR 401
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 4 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant, a [Age]-year-old citizen of Malaysia, arrived onshore [in] November 2015 holding an Electronic Travel Authority (Class UD) (Subclass 601) visa.

3. The applicant applied for a protection visa on 3 March 2017 and has been granted two bridging visas, the latest of which remains in force.

   Protection visa application

4. In his protection visa application and supporting materials the applicant claims to fear returning to Malaysia on account of political, economic and employment issues.

5. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

6. The applicant applied for a review of the delegate’s decision.

   Application for review

7. The applicant was not represented in relation to the review.

   Evidence

8. The Tribunal has before it a range of material, including, relevantly:

   a.A copy of the applicant’s Malaysian passport;

   b.The applicant’s protection visa application forms;

   c.The delegate’s protection visa decision record dated 4 July 2017 (delegate’s decision record); and

   d.The review application form lodged with the Tribunal on 27 July 2017 which included a copy of the delegate’s decision record.

9. The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Malaysia, 29 June 2021 (DFAT Report).

   Hearing

10. The applicant appeared before the Tribunal on 3 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

    Applicant’s oral evidence

11. The following is a summary of the applicant’s evidence to the Tribunal:

    a.The Tribunal asked the applicant about the completion of his Protection Visa application forms.  The applicant stated that he filled out the forms himself with assistance from another person although he does not now recall who that person was.  He confirmed that the contents were true and accurate.

    b.The applicant confirmed that his parents are resident in Malaysia, although his father left the family when he was “very young”.  He has [siblings].   One of his siblings, an older brother, is resident in Australia.  He has no regular contact with this brother.  The applicant is married and has a son aged [Age] years.  The applicant’s wife is a Malaysian citizen resident in Australia.

    c.The applicant stated that he completed six years of primary schooling in Malaysia and [Number] years of high school, “to the equivalent of year [Number]”.  The applicant stated that he worked in Malaysia as [an Occupation] prior to coming to Australia, and that he “supplemented” his income with “illegal activities”, namely “car theft and drug dealing”.  He stated that his brother-in-law “dragged” him into this illegal activity.

    d.When pressed on the nature of his illegal activities, the applicant stated that he engaged in these activities in partnership with another individual, named “[Mr A]”.  He stated that he met [Mr A] while stealing and selling cars.  [Mr A] was around [Age] years of age, and the applicant was around [Age] years of age when they met.  He stated that [Mr A] had been “shot to death” in December 2014.  The applicant stated that he had been stealing cars with [Mr A], and from around May or June 2014 “moving drugs”.  He stated that he and [Mr A] incurred a debt connected with their drug dealing and that [Mr A] was shot because of this debt. 

    e.The applicant stated that in March 2015 he was arrested by police for car theft, but that his mother paid a “bond” for his release.  He stated that he then tried to find legitimate work but found that his “criminal past” prevented him from finding work other than as a low-paid [Occupation].  He stated that he had tried to find better paid work in Kuala Lumpur, Johore, and Perak but without success.  He stated that the income from his work as a [Occupation] was insufficient to support himself and that he returned to his home village. 

    f.He stated that, upon his return, the head of the local drug syndicate came to his house and that he ran away to a friend’s house.  He stated that this person “would not let things lie” and that he was again arrested by police in May 2015 after “false allegations” were made that he had returned to illegal activities.  He stated that his mother paid another “bond” and told him to “go to another country, just leave for now”.

    g.When pressed for details regarding the head of the drug syndicate, the applicant stated that this person was a [Country] national whom he knew as “[Mr B]”.  When asked why [Mr B] came to his house and made false allegations against him, whether it related to the drug debt he had mentioned, the applicant stated that no, he had paid the debt off by this time; he stated his belief that “someone” had turned [Mr B] against him.  When pressed further on this issue, the applicant stated that he did not know why this person would want to turn [Mr B] against him.

    h.The applicant stated that [Mr B] was “at the top” of the local drug syndicate, that he had a lot of “boys” working for him, some of whom had connections with the police.  He stated that [Mr A] had been one of [Mr B]’s boys and that this is how the applicant came to be involved in “moving drugs”.  He stated that he himself had never been one of [Mr B]’s boys and he had never met [Mr B].

    i.When asked why [Mr A] was killed, the applicant stated that at that time they owed [Mr B] money for drugs, and they could not pay.  He stated that [Mr B] would provide drugs to [Mr A] and that he would ask [Mr A] and the applicant to sell them and to then return the money to him.  The applicant stated that he and [Mr A] did not have the correct amount of money to return as they had used some of it themselves and had consumed some of the drugs themselves.  He stated that the debt compounded over time, that he and [Mr A] got “deeper and deeper” into it and that they could not pay, so [Mr B] “took action” and [Mr A] was killed.

    j.When pressed as to the circumstances of [Mr A]’s death, the applicant stated that he and [Mr A] were going to get more drugs to sell, and that [Mr A] was shot while sitting “in the car”.  The applicant stated that the police investigated the murder, but he did not know the outcome of their investigation as, by this time, he had travelled to Australia.

    k.When asked whether, given that these events occurred some years ago, he was aware if [Mr B] was still active in his hometown, the applicant stated that he does not know but that, according to his mother, there are still a lot of drug dealers there.

    l.When asked whether he feared returning to Malaysia now, the applicant stated “absolutely”; when pressed as to why, the applicant stated:

    Firstly, I don’t know where [Mr B] is; secondly, he has a lot of “boys”; and at that moment people in Malaysia think that I am in gaol.

    m.The applicant stated that if he were to return to Malaysia “people would try to set [him] up”.  When pressed as to who these people are, he stated the people in his hometown, mostly being his extended family.  When further pressed as to why they would “set him up” he stated:

    The people in the village have it [in] for me; they reckon I am a bad influence, a bad presence, and they don’t want me in the community.

    n.When asked whether he was still wanted by the police in Malaysia the applicant stated that “at this point in time there are no matters ongoing” but that given his personal history a charge could be manufactured against him.  When pressed, the applicant confirmed that there would be no reason for the police to arrest him if he returned to Malaysia.

    o.When asked whether he could return to other areas of Malaysia, such as Kuala Lumpur, the applicant stated that he tried to live there but found it difficult to get a job and to “make ends meet”.

    p.When asked whether [Mt B]’s influence extended to Kuala Lumpur, the applicant stated that as far as he knew [Mr B] does not have connections in Kuala Lumpur but, as he has been lying low in Australia, “things may have changed”.  He stated that [Mr B] was a [Country] national who used to bring “massive quantities of drugs” into Malaysia and that he could be anywhere.

    q.When asked whether there was anywhere in Malaysia where he could find work and be safe from [Mr B], the applicant stated:

    I couldn’t tell you.

    r.The applicant stated that he is presently living in [Suburb] with his wife and son and that he engages in [Workplace] work, specifically “[job task]”.

    s.When asked whether there were any further matters he wished to raise, the applicant stated that his mother had attempted to obtain evidence of his arrests and release by police, but that as she had paid a bribe rather than a bond there was no such evidence.  The applicant stated that such bribes are known as “coffee money”.

    Country information

12. DFAT’s assessment of the Royal Malaysia Police (RMP) and court process in Malaysia includes the following (from the DFAT Report):

    5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption.

    …

    5.18 DFAT assesses that, while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.

    CONSIDERATION OF Claims and evidence

    Criteria of a protection visa

13. 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 he 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.

14. 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.

15. 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).

16. 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.

17. If a person is found not to meet the refugee criterion in s.36(2)(a), he or he may nevertheless meet the criteria for the grant of the visa if he or he 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 he 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

18. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    Assessment of Claims and evidence, and findings:

19. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or his. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

20. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

21. 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’. 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.

22. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

23. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Findings

24. In giving his oral evidence, the applicant appeared to the Tribunal to do so sincerely.  Allowing the applicant the benefit of the doubt the Tribunal is prepared to accept that:

    a.the applicant is concerned about returning to Malaysia on the grounds that he will not be able to earn enough there to cover the costs of living of his family (that is himself, his wife, and his son).

    b.As a young man the applicant engaged in illegal activities in Malaysia, specifically car theft and drug dealing.

    c.The applicant’s then associate, one [Mr A], was shot and killed in December 2014 over a drug debt.

    d.The applicant was arrested by police in March 2015 for car theft and released upon payment of a sum of money to police by his mother.

    e.The applicant was arrested by police for a second time in May 2015 and was again release upon payment of a sum of money by his mother.

25. The Tribunal also accepts that the applicant wishes to stay in Australia to build a future for himself here. 

26. The applicant’s evidence, which the Tribunal accepts, is that he is does not owe any debts in Malaysia, either legal or illegal, and that he is not at risk of arrest or detention by the authorities for any reason should he return there.

27. Overall, however, the applicant’s evidence as to his fears of returning to Malaysia now or in the reasonably foreseeable future was plagued with surmise and speculation; specifically:

    a.The Tribunal finds the applicant’s evidence as the motives for his second arrest in May 2015 to be unpersuasive.  The applicant’s belief that “someone” had turned “[Mr B]” against him for unexplained reasons, while sincerely held by the applicant, was uncorroborated and revealed to be shallow when scrutinised for detail during the hearing.

    b.The Tribunal finds that the applicant’s evidence that “people would try to set him up” or that a “charge could be manufactured against him” to lack detail when pressed, and to be inconsistent with DFAT’s assessment of the RMP as being “a professional and effective police force” as set out above.  The Tribunal considers such fears to be mere speculation on the applicant’s part not amounting to a well-founded fear of persecution, nor do they disclose a real risk that he will suffer significant harm if returned to Malaysia.

    c.The applicant’s evidence to the Tribunal is that he did not work directly for “[Mr B]” (he was not “one of his boys”), he had never met “[Mr B]”, he does not owe “[Mr B]” any money and he is unable to say whether “[Mr B]” still holds any influence in his hometown.  The Tribunal did not find this evidence to be persuasive in respect of the applicant’s claims of retribution or interference from “[Mr B]” and finds such fears to be mere speculation not amounting to well-founded fears of persecution, nor do they disclose any real risk that he will suffer significant harm if returned to Malaysia. 

    Is the applicant a member of a particular social group?

1. The Tribunal notes the applicant’s evidence that he:

   …tried to find legitimate work but found that his “criminal past” prevented him from finding work other than as a low-paid [Occupation]

2. In considering whether the applicant is a member of a particular social group for the purposes of the Act (defined as “jobseekers in Malaysia with a criminal past”) the Tribunal notes a distinction drawn by the Courts that the primary focus of this Convention ground is on what a person is - a member of a particular social group - rather than what a person has done, or may do, or possesses.

3. In Morato v MILGEA Black CJ stated:[1]

   It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason. The primary focus of this part of the definition is upon an aspect of what a person is - a member of a particular social group - rather than upon what a person has done or does.

   [1] Morato v MILGEA (1992) 39 FCR 401 at 405

4. The Tribunal notes his Honour’s further comments that the distinction should be treated with caution as membership of a particular social group may nevertheless underlie, or be consequent upon, voluntary or discretionary actions engaged in by a group of persons.

5. That is not, however, the present case. 

6. There is no suggestion that the applicant was other than a voluntary actor in respect of the activities he describes as his “criminal past”.  The Tribunal considers that to the extent that he is a member of a cognisable social group of “jobseekers in Malaysia with a criminal past” his membership of that group is a consequence not what he is, but of what he has done.

7. The Tribunal concludes, therefore, that the applicant is not a member of a particular social group for the purposes of the Act.

   Analysis of claims: economic hardship

8. The Tribunal accepts that the applicant does not wish to return to Malaysia because he would be unable to earn a wage there sufficient to support his family.  However, the applicant made no claim that this circumstance would result from one or more than one of the reasons enumerated in s.5J(1)(a) namely race, religion, nationality or political opinion.  The question of his membership of a particular social group has been considered in the preceding paragraphs and is also answered in the negative. 

9. Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established.  Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion. 

10. In its most recent overview of Malaysia’s economy,[2] DFAT reports that:

    2.11 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 (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.

    2.12 In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.

    [2] Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Malaysia, 29 June 2021.

11. The Tribunal is not persuaded on the applicant’s evidence that he would be subjected to significant economic hardship in Malaysia that threatens his capacity to subsist there.  The Tribunal notes the DFAT Report in this regard, in particular noting DFAT’s expectation that the Malaysian economy will “rebound” after 2020, with Malaysia’s central bank forecasting growth of between 6 and 7.5 per cent.

12. The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution in Malaysia based upon a claim of economic hardship.

13. In respect of his claims regarding “politics”, the applicant’s evidence was generalised and speculative and did not disclose a well-founded fear of persecution in Malaysia nor a risk of suffering significant harm there on account of any political views he may hold.

    Other claims

14. As to other facts which are accepted, namely that the applicant is a [Age]-year-old ethnically-Malay male who is a Malaysian national, the Tribunal is satisfied that the applicant’s age, gender, ethnicity and nationality do not give rise a well-founded fear of persecution if he returns to Malaysia or of his being at risk of suffering significant harm there.

    Complementary protection

15. The Tribunal accepts the applicant has concerns about being able to find work if he returns to Malaysia and the general economic situation there.  The Tribunal also accepts that he may face some difficulty in doing so at least initially.  However, the applicant did not suggest that any person or group will seek to harm him for any reason relating to his economic situation.  Although the applicant’s evidence is that his “criminal past” hindered his job seeking, there is no evidence before the Tribunal that he has ever been prevented from obtaining work in Malaysia. 

16. Accordingly, the Tribunal finds that any economic hardship the applicant might experience, if removed to Malaysia, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.

    Cumulative claims

17. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Malaysia.  Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

18. The Tribunal has considered the applicant’s claims under complementary protection. 

19. The Tribunal has considered whether any economic or financial hardship he might encounter as a necessary and foreseeable consequence of being returned to Malaysia would amount to “significant harm” as exclusively defined in s.36(2A) of the Act.  

20. On the information and evidence before it, the Tribunal finds that any harm faced by the applicant due to the economic situation in Malaysia would not involve the applicant being arbitrarily deprived of his life or being subjected to the death penalty.  The Tribunal finds that experiencing some economic hardship does not involve the applicant being subjected to torture, or to cruel or inhuman treatment or punishment.  It does not involve his being subjected to degrading treatment or punishment.  The Tribunal finds that the economic hardship the applicant may encounter if he is returned to Malaysia due to the general economic and living conditions there would not be “significant harm” as that term is defined in the Act, and that there would therefore not be a real risk that he would suffer significant harm for this reason as a necessary and foreseeable consequence of his being returned to Malaysia.

21. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Malaysia now or in the reasonably foreseeable future.

22. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment.  It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty.  The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Malaysia.  Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    Conclusion: Refugee Criterion

23. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group).  Her fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.

    Conclusion: Complementary Protection

24. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.

    Overall conclusion:

25. 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).

26. 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).

27. There is no suggestion that the applicant satisfies the Act 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

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

    Damian Creedon
    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.

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    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.

    …