1716512 (Refugee)

1716512 (Refugee) [2022] AATA 2399 (23 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1716512

COUNTRY OF REFERENCE: Malaysia
MEMBER:Tania Flood
DATE:23 May 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2022 at 11:27am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – love marriage – applicant’s family do not accept her husband – economic conditions – employment – political instability – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 17 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 January 2017. The delegate refused to grant the visa on the basis that there is not a real chance or a real risk the applicant will suffer serious or significant harm if she returns to Malaysia for the reasons claimed.
The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, 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 applicant agreed to appear before the Tribunal by telephone on 20 May 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to her during the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if she returns to Malaysia for reason of her race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Malaysia there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in her application for a protection visa the applicant is [an age]-year-old Malaysian citizen who was born in Sabah. She states she is a ‘Shia’ Muslim and at the time of application she stated she was never married. She listed no other family members on the application form but in response to a question about contact with relatives outside Australia she indicates that her mother, [and specified family members] are in Australia. She listed three residential addresses in Malaysia in Ampang Selangor and [City 1]. She completed post-secondary education in [a specified course].
The applicant last arrived in Australia [in] August 2016 on a Visitor visa. She applied for a Protection visa on 31 January 2017.
The applicant claims she left Malaysia because of the prevailing political and economic crisis which had wide ranging implications for the government and the people of Malaysia.
The applicant states that if she returns to Malaysia she will not be able to support herself financially and emotionally because of low job opportunities and wages not matching the rising cost of living. The economic crisis has also contributed to a rise in crime. Political instability has resulted in public demonstrations which create chaos and contribute to feelings of insecurity.
The applicants claims that nothing bad happened to her in Malaysia but she didn’t feel safe being there. The situation is the same throughout the country.
On 23 December 2021 the applicant advised the Tribunal of a change in circumstances in that she gave birth to a daughter [earlier in] 2021. She attached a copy of her daughter’s birth certificate which lists the father as [Mr A], [an age]-year-old Malaysian citizen.
In an email to the Tribunal dated 18 May 2022 the applicant states that she left Malaysia because of financial problems. She claims additionally that she got married in Australia and her family do not accept her husband. She claims they wanted her to marry a man of their choice. Even though she has given birth to a daughter her parents do not accept her. She wishes for her daughter to grow up in Australia where she will receive a better education.
Tribunal hearing
The applicant appeared before the Tribunal on 20 May 2022 to present evidence and arguments in support of her case. Her testimony is summarised as follows:
She stated that she was born in Sabah, Malaysia but previously resided on the Peninsula in [City 1] with her [sister]. She said her parents were separated and her father has remarried and lives in Paheng. Her mother lives in Selangor. Her parents do not respond to her efforts to contact them but she does have contact with [other family members]. She has [specified family members]; one lives in Selangor but she does not know the whereabouts of the others as she is not close to [other siblings]. [Specified siblings] have both visited her in Australia. Her [sister] visited Australia when she got married.
She met and married her Malaysian citizen husband in Australia. They remain married and have an [age] daughter. Her husband does not have a permanent visa to remain in Australia. He holds a Bridging Visa E.
She is from a Sunni Muslim family but she herself is not a fervent believer and nor is her husband who is also Muslim.
She completed secondary school and worked as [an occupation 1] in Malaysia. In Australia she has worked in various positions in factories and in [industry 1]. Her husband only completed lower secondary school and he works in [industry 1] in Australia.
Her husband’s family live in [City 1]. He has one [sibling] in Australia and she has met him. She does not know the rest of the family. Her husband has contact with his family and they are aware they are married and have a daughter.
She does not wish to return to Malaysia as the high cost of living and lack of job opportunities makes it difficult to survive and contributes to a high crime rate.
She was never involved in any political activity in Malaysia and has never attended demonstrations against the government.
She fears she will be ostracised by her parents if she returns to Malaysia because they do not approve of her choice of husband. Her mother wished for her to marry a distant cousin but she did not want to. She said her parents brought up the suggestion while she was in Malaysia but they didn’t push it. When she informed them she was going to get married in Australia they tried to dissuade her and suggested again that she marry the man identified by her mother. She has not been threatened with harm by her parents but their rejection of her disturbs her mentally.
She agreed that her [sister], who accepts her choices and understands her, and her in-laws could be a source of support for her and her family if she returns to Malaysia but she does not want to live in Malaysia.
FINDINGS AND REASONS
Country of reference
The applicant’s passport verifies her claimed identify and nationality. Based on this and in the absence of any information to the contrary the Tribunal finds the applicant is a citizen of Malaysia.
Economic and political instability and high rates of crime
The applicant claims that it would be difficult to find employment in Malaysia and that with the high cost of living it will be difficult for her to survive under such circumstances.
The Tribunal discussed with the applicant country information in respect of the current economic situation in Malaysia. Specifically, the Tribunal referred to information contained in DFAT’s country information report on Malaysia (29 July 2021) which indicates that Malaysia is an upper-middle income country which due to its economic performance over several decades has significantly reduced poverty. The Tribunal noted DFAT’s advice that women’s participation in the workforce has risen considerably over the last decade aided by the introduction of policies and budgetary provisions aimed at ensuring equal pay and participation and assisting women to re-enter the workforce after childbirth. The Tribunal also noted that Malaysia has a welfare system which offers certain protections to vulnerable persons.[1]
[1] ‘Social Protection Programme in Malaysia, Do We Need Integration?’, Samad SA and Shahid, M Md, International Journal for Studies on Children, Women, Elderly and Disabled, Vol 5, October 2018; ‘A Decade of Social Protection Development in Selected Asian Countries, OECD, 11 May 2017
The applicant maintained that people are struggling financially in Malaysia and the Tribunal accepts that COVID-19 has impacted the Malaysian economy as it has done globally. However, the applicant was able to secure employment in the past in Malaysia and the Tribunal is of the view that she could do so again given the relatively favourable economic conditions in the country. The Tribunal accepts that her earning capacity in Malaysia may be lower than that which she could expect in Australia however it is not persuaded that she will be unable to subsist if she is required to return to Malaysia. In forming this opinion the Tribunal acknowledges the applicant has an [age] baby but notes she would likely have the support of her [sister] and quite possibly her in-laws at least initially as she seeks to re-establish herself in Malaysia. She also has a husband who would be able to provide her with assistance.
As discussed with the applicant during the hearing any political instability that may be present in Malaysia and the prevalence of crime in the country are issues which affect the population generally in Malaysia and wouldn’t appear to involve any systematic and discriminatory treatment or intentional acts of harm aimed at her personally. The applicant is not involved in any political activities herself which are likely to attract adverse attention from the authorities and there is nothing before the Tribunal to indicate that her exposure to political upheaval or crime would be any different to any other ordinary Malaysian citizen. In regard to the latter, and as discussed with the applicant during the hearing, country information sources indicate that despite the existence of some corruption the Royal Malaysian Police force is generally regarded to be a professional and effective force capable of assisting citizens who fall victim to crime[2].
[2] DFAT Country Information Report, Malaysia, 29 June 2021
For all the above reasons the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if she returns to Malaysia for reason of economic or political instability or high rates of crime in the country.
Ostracism from family
The applicant claims that her parents do not approve of her husband because he has a low level of education and poor economic prospects. She claims her mother preferred her to marry a distant cousin. She claims that since she advised them of her decision to marry her husband they have refused her efforts to contact them. That said, she conceded during the hearing that they have not threatened to harm her in any way over this and are not likely to although their behaviour toward her is mentally disturbing.
The Tribunal accepts the applicant’s testimony that her parents might not approve of her decision to marry the man of her choosing and that they may have decided to refrain from speaking to her for this reason. Based on her testimony however, the Tribunal finds there is not a real chance or a real risk that they will seek to physically harm her for this reason if she returns to Malaysia.
The Tribunal accepts the applicant is upset by her parent’s actions and that this might be causing her some emotional or mental disturbance. However, there is no evidence before the Tribunal to indicate that such mental disturbance is or would be so severe as to amount to serious or significant harm. join
Notwithstanding the above, based on her oral testimony the applicant nevertheless enjoys the support and acceptance of her [sister] and the Tribunal finds she will at least have some familial support to rely on if she is required to return to Malaysia.
In the circumstances the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if she returns to Malaysia for reason of being ostracised from her family.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2399

23 May 2022

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