1716420 (Refugee)

1716420 (Refugee) [2022] AATA 1312 (16 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716420
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Phoebe Dunn
DATE:16 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2022 at 6:36pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of economic harm – will be declared bankrupt if loans from government not repaid – loans taken to fund work on government contracts, before being paid for work on completion on contract – government corruption – Indigenous ethnicity – credibility – undetailed, inconsistent and late claims – details of employment history and contracts and loans – employment in Australia and substantial repayment of loans – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (4), (5), 36(2)(a), (aa), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 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 Malaysia, applied for the visa on 31 March 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied on the basis of the information before it that the applicant’s claims gave rise to grounds for protection either on refugee grounds or complementary protection grounds.
By letter dated 4 January 2022, the Tribunal wrote to the applicant advising that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone and accordingly was inviting the applicant to attend a hearing in person scheduled for 2 February 2022 to give evidence and present arguments relating to the issues arising in his case.
By email dated 4 January 2022 the applicant wrote to the Tribunal requesting that the hearing be converted to a video or telephone hearing as the applicant had moved interstate temporarily for work. The applicant confirmed his contact details. On 10 January 2022, the Tribunal wrote to the applicant advising that the hearing had been converted to a video hearing and would proceed on 22 February 2022 at 1.30pm. The invitation included detailed instructions on how to join the hearing by video and also provided a unique conference code and PIN should the hearing proceed by telephone. The applicant was also invited to attend a test dial of the video connection to ensure the applicant had appropriate technology to enable the hearing to proceed by video and to minimise any technical issues on the day of the hearing.
The test dial was not successful because the applicant did not have a strong enough connection to be able to set up the MS Teams technology on his device. Accordingly, the Tribunal wrote to the applicant confirming that the hearing would proceed on 22 February 2022 as a video hearing, noting that if the technology was not suitable on the day it would proceed as a telephone hearing. The Tribunal also sent confirmation of the instructions to access the hearing on the specific date and time.
The applicant appeared before the Tribunal by telephone on 22 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal also had regard to the applicant’s request that the hearing proceed by video or telephone as he had moved interstate for work. While the hearing was interrupted on a number of occasions when the applicant’s line dropped out, the Tribunal is satisfied that appropriate steps were taken to ensure that the applicant heard and understood all the Tribunal’s questions and other dialogue between the Tribunal and the applicant and that the Tribunal heard and understood all of the applicant’s responses and other dialogue between the applicant and the Tribunal. The Tribunal repeatedly confirmed with the applicant that he was able to hear the interpreter and that he was happy to proceed by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Identity
The applicant provided a copy of his Malaysian passport to the Department with the application.
Based on this information and without any information to the contrary the Tribunal accepts that the applicant is who he claims to be, that he is a national of Malaysia, which is also his receiving country.
Based on the information before it, the Tribunal finds that the applicant does not have a right to enter and reside in any third country.
Background
The applicant arrived in Australia on a tourist visa [in] February 2017 and applied for protection on 31 March 2017.
Claims
The applicant made the following claims in his protection visa application:
a.The Malaysian government has a corruption problem.
b.The political and economic environment is unstable and deteriorating.
c.Malaysia has racist practices.
d.More people are losing their jobs and businesses.
e.The applicant came to Australia to find a good job so that he can support his children and family in order to survive.
f.He could not move to another part of the country because the racism is even worse in Malaya than on the Peninsular.
The applicant provided the following background in his protection visa application. He was born in [Town], Sabah. He is of Dusun ethnicity and described himself as a ‘Borneo native’. He is a Christian. His mother still lives in [Town], Sabah and he speaks to her twice a week by telephone. He has never travelled anywhere else before or after coming to Australia. He did not provide any employment or unemployment details where asked to do so, but listed his occupation as volunteer for Sabah, Sarawak and [Country]. He completed secondary school in December 2001. The applicant did not provide details about his children or family. The applicant did not provide any details about whether he had experienced harm arising from his claims.
The applicant made the following new claims at the hearing:
a.He has a loan from the government that if he does not repay he will be declared bankrupt.
b.He has another loan from the [Bank]. If he doesn’t repay this loan he will be declared bankrupt.
c.The economy is bad in Malaysia and it is hard to get a good job.
d.If he goes back to Malaysia and can’t get a good job he will be declared bankrupt. He will not be able to get work, open a bank account or support his family.
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–5LA, which are extracted in the attachment to this decision.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
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.
Evidence at hearing
At hearing, the applicant provided detailed oral evidence about his background and circumstances. He stated that a flatmate had helped him fill out the protection visa application. When asked if he could confirm the details he stated that there may be some information that needs to be elaborated on in the claims.
The applicant was born and raised in Sabah. He is the fourth child of six children and his parents and siblings still live in Sabah. He completed the fifth year of high school in [Year] and started working after finishing school. After school he attended college and undertook a course in [Subject] between [year range]. During that time, he worked part time in various [roles]. After finishing the course, he worked [in one role] at [Employer] for about a year then worked in a [Workplace] [in another role] for about a year. He then got a job as [an Occupation 4] [in a location] for approximately five years. These positions were all full time. He stated that the last job he got before coming to Australia was as [an Occupation 5] in a [Workplace] and [an Occupation 6] and he also worked as [an Occupation 7] and held these jobs around 2015 or 2016 but wasn’t sure of the precise timing.
The Tribunal asked the applicant to outline why he had come to Australia. In response, he stated that he had a loan from the government and if he doesn’t repay the loan he will be declared bankrupt. The Tribunal asked the applicant to provide further details about these circumstances. In response he stated that he had a contract supplying [Product] to [Facilities] and a contract building [Public works 1 and 2]. The Tribunal noted that earlier he stated the last jobs he had before coming to Australia were as [an Occupation 5], [Occupation 6] etc. and asked him to provide a detailed timeline of when he held these contracts and how these fitted with his other work history, noting that the applicant had not included any work history in his protection visa application. The applicant stated that he got the contracts after he finished as [an Occupation 4], sometime in 2013.
The Tribunal asked the applicant to provide a detailed account of the circumstances surrounding the loans and the contracts. The applicant then proceeded to describe the circumstances providing evidence that was at times rambling and difficult to follow. He stated that the contracts lasted for two years. He stated that in 2014 his partner ran away with the money paid under the contract so he had to stop the contracts. When asked for further information the applicant couldn’t remember when this occurred but thought it was at the end of the year. When asked for further information about the applicant’s partner he stated he was a close friend, [name deleted]. When pressed for further details he stated he couldn’t remember his surname. When asked when they met he stated in 2013. When asked how they met he stated he would always come to the village. When asked about the nature of their relationship he stated they were friends. When asked whether they were business partners he stated that he always spoke about the contracts and had experience with contractual negotiations and he would do the work. They applied for [a] contract. The terms of the contract were that they would be paid once they had finished the work.
He stated that in relation to the [Facilities product] contract they had to come up with the money to fund the acquisition of materials to make the [Product] for the [Facilities] and would be paid each month. This contract lasted for about three months. He got his payments but didn’t make any profit. He did not have any issues with that contract.
In relation to the [Public works 1 and 2] contract he stated that they had to complete the job before they were paid. The job took about five months and the contract was completed. The deal with his friend was that when they got the money it would be divided equally between them. He stated that his friend used his half of the money to go to a club and enjoy himself. He had to use the other half of the money to pay the workers and there was nothing else. He stated that he had previously taken out the loan to provide capital for the contract but he had run out of money. When asked whether his business partner was a signatory to a loan or had also taken out a loan to finance the contract, he said no. When asked if the proceeds had been divided after all expenses had been accounted for, such as wages, he said no. The Tribunal noted that it did not sound like an equitable arrangement. In response, the applicant stated that his friend took the money paid under the contract, divided it into two and ran off, leaving the applicant to cover all the expenses. He looked for him but could not find him. He has not seen him since and could not get in contact with him.
The Tribunal asked for further information about the nature of the loan. In response he stated that there were two loans of a total of between 60,000MYR and 70,000MYR. He stated that the first loan was for approximately 40,000MYR and the second loan was for about 20,000MYR and this one was with a government corporation. The Tribunal asked when the applicant took out the loans. He stated that one loan was sometime in 2013 and the other loan was sometime in about 2010 or 2011 but he could not remember when.
The Tribunal sought further details about the terms of the loans. He stated that the loan for 20,000MYR was for employees of the public service and he took out that loan when he was [an Occupation 4] for the [government]. He took out the loan to support his family and saved the rest. He had to make monthly repayments until the loan was finished. When asked if he had to pay interest on this loan he said yes. He did not remember how much the interest was on this loan but thought it was between 4% and 5%. The Tribunal asked the applicant if he knew how much of this loan he had repaid and what was still owing. He stated that he had contacted the corporation last year and at that time he owed about 4,000MYR. The Tribunal asked if he had any documentation or could provide any information about the terms of the loan to the Tribunal. He stated no, he only has documents in relation to the other loan. He stated that this loan has been frozen because he is not able to pay for it when he is outside the country. He then stated that he has got a letter that he may be able to provide to the Tribunal.
The Tribunal then asked for further information about the other loan for 40,000MYR. The applicant stated that this was a bank loan with the [bank] and he is still servicing the loan. He stated that there is approximately 5,000MYR left owing on this loan. He stated that he sends money to his family every month and they make the repayments into an ATM in Sabah. He stated that this loan was meant to be paid but because of COVID the payments were frozen. He stated that if he doesn’t make a payment every month he will be declared bankrupt. He then stated every two to three months he would send a total of around 2,000MYR to 3,000MYR. The Tribunal noted that earlier he had stated that he would make monthly repayments but was now saying that he would only make payments every two to three months. In response he stated that he initially sent money every month but for the last two to three years he sent it every two to three months. The applicant did not provide any information or detail to the Tribunal about the terms of the loan or the process by which the applicant would be declared bankrupt and why he fears this would be a necessary outcome of failing to make repayments.
The Tribunal then raised with the applicant s 423A of the Act, noting that there was no information about these claims relating to the loans or his employment experience in the protection visa application and that the Tribunal is required to make an adverse inference as to the credibility of these claims and evidence unless there was a reasonable explanation for not providing these details to the original decision maker. The Tribunal asked the applicant to confirm that he understood and the applicant stated yes. The Tribunal asked if he could offer a reasonable explanation as to why he had not provided these claims in the protection visa application or provided the detail regarding his employment history. In response the applicant stated that he didn’t explain the detail to his friend because his friend’s English is not good either. When asked to confirm that this was the reason he didn’t raise these claims before the original decision maker he stated yes and also that the person who filled it out for him did not ask him to provide these details. The Tribunal noted that it was his responsibility to provide the details in his application.

The Tribunal reiterated its opening remarks about the criteria that needed to be satisfied in order to be granted protection either as a refugee or on complementary protection grounds, noting that not all reasons for coming to Australia or not wanting to return to his home country give rise to protection claims. The Tribunal noted that the applicant had to establish that he had a well-founded fear of persecution for a refugee reason (race, religion, nationality, membership of a particular social group or actual or imputed political views) as defined in the legislation or was otherwise owed complementary protection. The Tribunal asked the applicant to articulate what he feared if he returned to Malaysia in relation to the loans. In response he stated that the economic situation in Malaysia in 2013 was very bad and it was hard to get a good job. The Tribunal asked for further details about what he actually fears. In response he stated if he has to go back to Malaysia he will not be able to repay the loan and he won’t be able to get a job and will be declared bankrupt and won’t be able to open a bank account. He stated it is difficult to get a good job in Malaysia and to pay off debts.
The Tribunal noted that the applicant’s oral evidence regarding his extensive employment history provided to the Tribunal indicated that he had been consistently employed since he left school. The Tribunal noted that the evidence he had provided to the Tribunal was not consistent with his claims that he would not be able to get a job. In response he agreed that he had been in consistent employment but stated that his jobs had been for very low wages. He stated that if he gets a job in Malaysia it would be for a low wage and not enough to repay his debts. The Tribunal noted that the applicant had provided information to the Tribunal that the debts had nearly been paid off. The Tribunal asked why he believed he would not be able to get a good job. In response he stated that it is difficult to get a job in Malaysia. The Tribunal noted that the applicant had a college degree and was consistently employed prior to coming to Australia and this was not consistent with his concerns that he would not be able to obtain employment. He stated that he had only completed a certificate-level course and without a university degree it is difficult to get a job.
The Tribunal then sought further information from the applicant about his family, ethnicity and religion. The applicant stated he married sometime in 2012 or 2013 but could not remember when. His wife is still living in a village in Sabah with her family. They have one child who is now about [age] years old. He can’t remember when she was born but it was prior to coming to Australia. He thinks she was around one year old when he came to Australia. His wife and daughter were due to come to Australia last year but the borders were shut. He speaks with them every day on the telephone.
The applicant was raised Catholic and would attend church weekly in Malaysia. In Australia he mostly practised at home. He confirmed he had never had any issues in Malaysia in relation to his religion. He is of Dusun ethnicity and his wife is also Dusun and has the same religion. He confirmed he had never had any issues in Malaysia on account of his ethnicity.
The Tribunal asked why the applicant had come to Australia. He stated that he came to look for a job. He got some work in factories and on a farm. He started working two weeks after arriving. He then applied for protection four weeks later. The Tribunal raised with the applicant the delay in applying for protection, noting that this might lead the Tribunal to consider he had applied to extend his time in Australia and secure a visa outcome rather than for a genuine protection reason. In response he stated he was thinking about whether he would stay in Australia or return to Malaysia. The Tribunal reiterated that in order to be granted protection he must meet the criteria for the grant of a protection visa based on a well-founded fear of persecution for one or more of the five refugee criteria previously outlined or for complementary protection reasons. The Tribunal noted that seeking work or wanting a better life in Australia on its own does not give rise to protection claims and asked the applicant to articulate what he fears. In response, he stated that it would be difficult for him to pay off his loans.
The Tribunal then asked the applicant about each of the claims in his protection visa application and asked him whether he still wished to rely on those claims in addition to the new claims raised at hearing.
Malaysia has a corruption problem
In response to a request for further information about what the applicant feared in relation to his claim that Malaysia has a corruption problem, the applicant stated that if he was to apply for a job in the government service it would be very difficult for him to get one because people tend to put their own people into those positions. The Tribunal asked if he had ever experienced this directly. In response he stated that this had happened to him. When pushed for further information he said he couldn’t remember exactly when or any precise details but he did apply for a job and a person who got worse results than him in school got the job because he or she had a family member who worked in the government.
The Tribunal noted that the applicant had previously been able to secure government contracts as per his earlier evidence and this seemed inconsistent with his claim that he could not get government jobs because of corruption. In response he stated that he subcontracted to the main contractor who had secured the contract. The Tribunal raised the applicant’s employment as [an Occupation 4] that he held for five years which was also a government job. In response, he stated that this job is easy to get because it was a high-risk job and not many would apply for it.
The applicant confirmed he still wished to rely on this claim.
Unstable political and economic environment
The Tribunal sought further information about his claims relating to the instability of the political and economic environment. In response, the applicant stated that in Malaysia if you want to get an approval you need to pay bribes to secure it. The Tribunal asked if he had ever experienced this directly. The applicant stated no he did not have direct experience of this kind but everyone in Sabah knows about it and it happened to a friend. He stated that the economic environment makes it difficult for him to get more money and better finances. He did not provide any further detail about his claim relating to the ‘unstable political environment’.
The applicant confirmed he still wished to rely on these claims.
Racism
The Tribunal sought further information about his claims relating to racism and his claim that he couldn’t move elsewhere in Malaysia because racism is worse on the Peninsular than on Sabah. The applicant stated that he didn’t have anything further to add to these claims but still wished to rely on these claims. In response to the Tribunal’s question, the applicant stated he had never been directly impacted by racism but others have.
The Tribunal confirmed with the applicant that there was no reason he would be targeted for his actual or imputed political views or for any other reason. He stated he had never been engaged in any political activity.
The Tribunal again invited the applicant to provide any further detail in support of his claims. In response he said he came to Australia to get a good job and support his family in order to survive. He came here to avoid being declared a bankrupt. He confirmed he did not tell his friend about his fears of being declared bankrupt. He did not know about work visas. He knew about protection visas because a few people suggested he apply for protection including his friend who helped him fill out the form.
The Tribunal confirmed these were his only claims and the applicant had no other claims.
The Tribunal asked the applicant where he would live if he returned to Malaysia. He confirmed he’d live in his village with his wife. The Tribunal asked the applicant if he could relocate to other areas in Malaysia in search of work. In response he stated it would be difficult for him to move because life in the city involves huge cost. The Tribunal raised with the applicant independent country information that shows relocation for enhanced employment opportunities and higher wages is common in Malaysia, particularly from Sabah and Sarawak to the Peninsular, and there were no impediments to doing so.[1] The applicant agreed that a lot of people move because wages are higher on the Peninsular. In response to a question as to whether there was a reason he couldn’t move, the applicant stated that many people move temporarily but not permanently. He stated that if he returned to Malaysia he would need to live in Sabah to support his family. The Tribunal noted that he had moved to Australia and continued to support his family. In response he stated that he finds it better in Australia and that if he moved back he wouldn’t want to move to the Peninsular.
[1] DFAT Country Information Report – Malaysia – 29 June 2021, [2.9] to [2.13]
The Tribunal raised with the applicant information in his protection visa application that he was a volunteer in Malaysia and in [Country]. He stated he volunteered for the police around two times per week depending on the roster as part of neighbourhood watch and would help to patrol the area to monitor fights, thefts and crime. He did this for about two years between 2009 and 2011. He did not know anything about volunteering in [Country].
The Tribunal summarised and raised with the applicant independent country information about the economic and political situation in Malaysia, noting that the information suggests that despite the impacts of COVID-19, the economy is classified as an upper-middle income economy and anticipated to become a high-income economy between 2024 and 2028. The Tribunal noted also that the country information shows that unemployment is low and there is government support in the form of social welfare for those in need and specific measures were put in place during COVID-19. In response, the applicant stated that he did not know about the information regarding the economy and did not have any comment on the information regarding the social welfare system. Relevant country information states as follows:
2.9 The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 86.5 per cent of Malaysia’s exports in 2020. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source.
2.10 According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.
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.
2.13 In February 2021, the Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent. Prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent in 2019. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.
The Tribunal summarised and raised with the applicant country information that shows that while corruption continues to be an issue in Malaysia, the authorities can and do take action against corruption including in relation to public servants and that there were several high-profile corruption trials in 2020.[2] The Tribunal noted that this suggests that the applicant could seek assistance from the authorities if he were to experience any corruption. In response, the applicant stated that while there have been cases and charges and action taken in relation to corruption it is all short term and a lot of leaders and politicians are walking free despite being convicted of corruption and bribery.
[2] DFAT Country Information Report, Malaysia – 29 June 2021, [2.17] to [2.20]
The Tribunal summarised and raised with the applicant independent country information about the treatment of ethnic Malays and indigenous groups (Bumiputera), noting that they receive special measures under the constitution and that numerous government regulations and policies have included preferential treatment to boost the economic position of the Bumiputera and other positive discrimination measures.[3] The Tribunal noted that DFAT assess that Malays do not face negative official discrimination on the basis of their ethnicity and that this suggests that the applicant would not be subjected to discrimination on the basis of his ethnicity.[4] The applicant did not respond.
[3] Ibid, [3.1] – [3.7]
[4] Ibid, [3.7]
The Tribunal summarised and raised with the applicant independent country information about religious freedoms and Christianity in Malaysia, noting that the country information suggests that Christians generally live free from societal discrimination and are able to freely practise their religion, unless they are proselytising.[5] The applicant did not comment.
[5] Ibid, [3.58]
The Tribunal again raised its concerns with the applicant about the applicant’s new claims regarding loans and fear of being declared bankrupt and the circumstances surrounding his friend taking his money, noting the operation of s 423A of the Act. In response he stated that he did not know this information was required.
The Tribunal noted concerns about the vague nature of the applicant’s claims and that the applicant had provided very little detail about his claims. He could not remember with any degree of precision the dates of his claims relating to the loans, the contracts and the circumstances surrounding his friend taking the money which led to him not being able to pay off the loans. The Tribunal noted that he had provided very little detail in his protection visa application about his claims and why he feared returning to Malaysia. The Tribunal noted that this may lead the Tribunal to consider that he does not have these fears and that his claims are not genuine or that he has just applied for protection to prolong his stay in Australia rather than for a genuine protection reason. The applicant did not have any comment.
The Tribunal raised with the applicant its concern that on the applicant’s own evidence he came to Australia for work and to secure a better life and that this may lead the Tribunal to consider that this was the real reason for coming to Australia rather than out of a genuine protection reason. In response the applicant stated that he hoped his visa can be extended to the time that he has paid off all his debts. He thought that this might be by the end of this year.
The Tribunal raised with the applicant its concerns that his delay in applying for protection suggests that he did not fear returning to Malaysia for any reason claimed or for any protection reasons. In response the applicant stated he did not know how to apply for a visa and that’s why he delayed doing so.
Post-hearing submissions
The applicant was invited to provide documents to support his claims regarding the loans owed to the government and the bank and his fears of being declared bankrupt and was afforded two weeks to do so, due on 8 March 2022.
No post-hearing submissions or other documentation has been received from the applicant. There is no record of the applicant attempting to contact the Tribunal by any means since the date of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in s 5J of the Act in Malaysia and, if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
The applicant provided a copy of the delegate’s reasons for decision with the application for review. The Tribunal has a copy of the Departmental file and has had regard to the documents on that file.
The Tribunal in reaching its decision, has taken into account all of the evidence before it, including pre-hearing submissions, oral evidence of the applicant at the hearing, the contents of the Departmental file and independent country information about Malaysia. The Tribunal has considered all of the applicant’s claims in his protection visa application and his subsequent claims before the Tribunal, individually and cumulatively.
The Tribunal expressed to the applicant its concerns regarding the vague and general nature of the applicant’s claims and the lack of detail or evidence to support the claims. The Tribunal also expressed its concerns to the applicant that none of the applicant’s claims appeared to meet the required tests under either one or more of the refugee criteria or the alternative complementary protection criteria. The applicant’s oral evidence at hearing did not alleviate those concerns.

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings
The Tribunal accepts that the applicant was born and raised in Sabah, is married with one child who is about [age] years old.
The Tribunal accepts that the applicant came to Australia seeking work and a better life for his family. The Tribunal finds that this was the real reason the applicant came to Australia and that the applicant did not come to Australia to genuinely seek protection for any of the reasons set out in the Act.
The Tribunal makes the following findings in relation to the applicant’s claims in his protection visa application.
In relation to the applicant’s general claims about economic and political instability, the applicant did not provide any detail about how these claims affect him specifically or why he fears harm on the basis of these claims. In the absence of any specific detail, there is nothing in the country information that suggests that the Malaysian economy or political environment would lead to the applicant facing serious harm. The Tribunal finds based on the country information that the economic or political circumstances in Malaysia would not result in serious harm to the applicant, having regard to the examples of serious harm set out in s 5J(5) of the Act. The Tribunal does not accept the applicant’s claim that many people are losing their jobs and businesses on these grounds.
The Tribunal finds that the applicant’s evidence of his consistent and extensive employment history in Malaysia is inconsistent with the applicant’s claims that he would not be able to secure employment if he were to return to Malaysia and would not be able to get a good job. The Tribunal does not consider this to be consistent with the applicant having a real chance of persecution for any economic or political reason.
Even if the Malaysian economy generally or the applicant’s economic circumstances specifically were to amount to serious harm, the Tribunal considers that the applicant has failed to identify (having regard to the definition in s 5J(1)(a)) any basis on which the economic or political environment or any economic hardship he may face on return to Malaysia would affect him by reason of race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal notes that poor economic circumstances in a country do not in the absence of other considerations give rise to a well-founded fear of harm for the purposes of the refugee criterion. The applicant did not provide any information that the general economic circumstances in Malaysia amount to systematic and discriminatory conduct in respect to him. There is nothing before the Tribunal to suggest that the applicant would be subject to systematic and discriminatory conduct on these grounds. The applicant also failed to provide any detail of activity or fears relating to the ‘unstable political circumstances’ in Malaysia and how that would amount to systematic and discriminatory conduct in respect of him. Accordingly, the Tribunal finds that the applicant does not face persecution involving systematic and discriminatory conduct for the purposes of the refugee criterion in Malaysia now or in the reasonably foreseeable future, arising from economic or political circumstances in Malaysia.
In relation to the applicant’s claims about racism, the Tribunal finds that this claim is generalised and not specific to the applicant and the applicant has not presented any evidence that he has suffered harm on the basis of this claim. The applicant confirmed at hearing that he had not directly experienced any racism. The Tribunal notes that the country information does not support a finding that there is a real chance the applicant would suffer persecution if he were to return to Malaysia on this ground having regard to the applicant’s background and ethnicity. The Tribunal does not accept that the applicant has experienced harm on this ground or that there is a real chance the applicant would suffer persecution now or in the foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution for the purposes of the refugee criterion in Malaysia now or in the reasonably foreseeable future, arising from his ethnicity or incidences of racism in Malaysia.
In relation to the applicant’s claims about Malaysia having a corruption problem, the Tribunal considers the applicant’s claim to be generalised in nature and lacking in detail and specificity. The applicant claimed that someone gained a job because they had a family member who worked in the government. He also claimed that if he were to apply for a job in the government it would be very difficult for him to get one because people tend to put their own people in these positions. He also made a general statement that someone, a girl or a boy, who got worse grades than him secured a job and he did not. The applicant did not provide any further detail or specificity around these examples. The Tribunal considers that the applicant’s employment history in Malaysia, including securing government contracts and government jobs to be inconsistent with this claim. While the Tribunal has considered the applicant’s statement that in relation to the [Public works 1] contract he was working as a subcontractor and in relation to the lifesaving role, it was a high-risk position that not many would apply for, the Tribunal notes that the applicant also secured a government contract supplying [Product] to [Facilities]. The Tribunal does not consider the evidence before it to be consistent with the applicant having a real chance of persecution on this ground. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution for the purposes of the refugee criterion now or in the reasonably foreseeable future as a consequence of government corruption.
In relation to the new claims raised at hearing, the Tribunal considers that the applicant’s explanation for not making these claims before the original decision maker is lacking in detail and substance. Notwithstanding this, the Tribunal is willing to accept the applicant’s explanation, noting his friend helped him fill out the application and that neither he nor his friend had good English. The Tribunal is willing to accept that the applicant has two outstanding loans that he needs to repay in Malaysia, one government loan and one bank loan.
Notwithstanding this, the Tribunal notes that on the applicant’s evidence the quantum of those loans have been substantially reduced such that there is little remaining on either of the loans. On the basis of the applicant’s oral evidence, he has been able to repay around 16,000MYR from one loan and around 35,000MYR on his other loan to date, leaving only around 9,000MYR outstanding. The Tribunal also notes that the applicant has continued to make payments to the bank loan by sending money back to Malaysia and having his family deposit the money in the bank. In relation to the government loan, the applicant stated that it has been suspended while he has been in Australia. There is no information before the Tribunal to suggest that the applicant would not be able to continue to make payments towards those loans if he were to return to Malaysia. The applicant has claimed that he will not be able to secure employment to enable him to pay off the loans. As noted above, the applicant’s extensive employment history in Malaysia does not support this claim. The Tribunal considers his employment history in Australia would enhance his skills and his employment potential. Accordingly, the Tribunal does not accept that the applicant would not be able to secure employment if he were to return to Malaysia. Further, for the reasons identified above, the Tribunal does not consider the country information supports the applicant’s claim that he would not be able to find a job because the economy is bad. The Tribunal does not accept that the applicant would be declared bankrupt in these circumstances. Accordingly, the Tribunal does not accept this claim.
Accordingly, for the reasons identified 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) of the Act.
As the Tribunal finds the applicant is not owed protection under s 36(2)(a), the Tribunal has considered the applicant’s claims under s 36(2)(aa), the complementary protection ground. The types of harm that fall under complementary protection are exhaustively defined by s 36(2A), specifically that the person will be either arbitrarily deprived of life, the death penalty will be carried out on them, the person will be subjected to torture, the person will suffer cruel or inhuman treatment or punishment or the person may suffer degrading treatment or punishment.
When asked, the applicant confirmed that his only claims were those outlined above and he had no other claims. As such, the Tribunal finds that the applicant has not provided any other basis on which he claims he will be harmed on return.
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
In this context the Tribunal has considered whether the applicant’s claims regarding the economic circumstances and political instability in Malaysia give rise to a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act as a consequence of being returned to Malaysia.
For the reasons outlined above and having regard to the country information, the Tribunal does not accept that the economic circumstances and political instability in Malaysia would give rise to the type of harm defined in s 36(2A). Specifically, the Tribunal does not accept that the applicant would be arbitrarily deprived of life, the death penalty would be carried out on him, the applicant would be subjected to torture, the applicant would suffer cruel or inhuman treatment or punishment or the applicant would suffer degrading treatment or punishment.
The Tribunal does not consider that the applicant’s circumstances are such that there would be a real risk he would suffer significant harm in Malaysia.
Accordingly, 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) of 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) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Phoebe Dunn
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 of 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 of persecution would not exist if it were assumed that the fear of 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 1312

16 March 2022

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