1718564 (Refugee)

[2023] AATA 671

1718564 (Refugee) [2023] AATA 671 (23 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718564

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:23 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 23 January 2023 at 9:53am

CATCHWORDS

REFUGEE – Protection visa – Malaysia –– applicant left Malaysia for economic reasons – religion – Muslim – marriage to a Christian man – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 423, 499

Migration Regulations 1994, Schedule 2

CASES
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 2 May 2017. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was owed protection by Australia.

3. The applicant appeared before the Tribunal on 9 December 2022 to give evidence and present arguments. At the applicant’s request, the Tribunal hearing was converted to a video hearing because she said it was too difficult for her to travel to Melbourne. The hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

10. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Malaysia and she has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as her country of nationality and the receiving country.

    The applicant’s personal background

12. The applicant is a [age]-year-old woman from Pahang, Malaysia of Malay ethnicity and Muslim religion.

13. At hearing she gave evidence that she was born in Kuala Lumpur and is one of six siblings. The applicant and her two eldest siblings were brought up by her grandmother in Kuala Lumpur, while the three younger siblings were brought up by their parents in Pahang. The applicant was educated to the equivalent of year [grade].

14. At the age of about [age], the applicant moved to Pahang live with her parents. She worked in a [shop] in Pahang from 2014 to 2017 until she left Malaysia for Australia.

15. The applicant arrived in Australia on [date] February 2017 as the holder of a visitor visa and has not since departed.

16. The Tribunal accepts the above matters to be true.

    The applicant’s claims for protection

17. In the visa application the applicant states that she left Malaysia because of the deterioration of its political and economic status and the decrease in the Malaysian currency. She stated that prices had increased disproportionately to salaries and she had become poor.

18. In her written statement to the Tribunal in July 2022, the applicant stated that the Malaysian economy suffered a severe economic contraction which had an inevitable impact on Malaysia’s social sphere. Many Malaysians blamed the government for spending too much on politics and not enough on governing and some 12,510 people had died from COVID as overloaded government hospitals struggled to cope.

19. At hearing the applicant maintained that she left Malaysia for economic reasons, giving evidence that she came to Australia to look for work and to earn an income. She said she travelled to Australia with her mother because they were told by a friend that they could get work selling food. The applicant became distressed when telling the Tribunal that when they got to Australia this friend sent the applicant and her mother to work on a farm instead. Her mother returned to Malaysia after three months and the applicant applied for the protection visa so that she could work in Australia legally.

20. When asked if she considered she needed protection from her circumstances in Malaysia, the applicant said she did because she earned a much better living here in Australia than back home, especially as she came from a small town where wages are not high. She said if she returned to Malaysia, she would not be able to get a good job and support her family and that she was supporting her siblings even though they were married because they had only odd jobs working on farms.

21. At hearing I discussed with the applicant that economic conditions in a person’s home country do not generally enliven Australia’s protection obligations because the refugee assessment is directed at harm directed at a person for reasons of their race, religion, nationality, membership of a particular social group or political opinion and complementary protection obligations are concerned with intentional acts of harm by other persons. The applicant did not suggest that any economic harm she would face on return to Malaysia was for any of these reasons or that she would be harmed by the intentional acts of any other person. Rather she responded by stating that since arriving in Australia she has married a Christian man and the applicant’s claims to fear harm on this basis are considered further below.

22. The Tribunal accepts that the applicant came to Australia hoping to work and earn higher wages than were available to her in Malaysia in order to support herself and her family. The Tribunal further accepts that this has indeed been her experience and that if she returns to Malaysia, she will be unable to earn as much as she does here.

23. However the Tribunal finds that the economic harm feared by the applicant is not for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or political opinion. Therefore, that harm does not meet the criteria set out in s.5J(1)(a) of the Act.

24. The applicant does not suggest that any economic harm she might suffer in Malaysia would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor does she suggest that she will be subjected to the death penalty in Malaysia for any reason. For these reasons the Tribunal does not accept that any economic harm to which the applicant may be subjected if returned to Malaysia would meet the definition of ‘significant harm’, as that term is exclusively defined in s.36(2A).

    New claims at hearing

25. The applicant made new claims before the Tribunal relating to her Muslim religion and her recent marriage to a Christian man from Sabah.

26. Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred.

27. As the applicant lodged her protection visa application in May 2017, prior to her marriage in Australia in 2022, the Tribunal accepts there is a reasonable explanation as to why these matters were not presented to the primary decision maker and draws no adverse inference to the applicant’s credibility.

28. In a written statement to the Tribunal in July 2022, the applicant states that Malaysia is no longer safe given rising crime rates and the likelihood of terrorist attacks and made reference to the risk of kidnapping on the eastern coast of Sabah, particularly for tourists. This is relevant to her because she is now married to a man from North Borneo. She states that during recent years there has been an increase in kidnappings in the islands close to the Sulu archipelago in the Southern Philippines and this was relevant to her because she is married to a man from North Borneo. She stated that Sulu had claimed North Borneo to be part of their own country, but the Malaysians refused because they have a different language and culture. The applicant also submitted an article concerning cross border attacks on Sabah which appears to be sourced from Wikipedia.

29. At hearing the applicant gave evidence that since her arrival in Australia she has met and married a man from Sabah, Malaysia. She said her husband was also a Malay national who came to Australia in 2016, they married in early 2022 and they do not yet have any children. When asked if she knew why her husband had come to Australia, she said she was not sure but he came with his sister. When asked if her husband was planning to return to Australia or stay in Australia, the applicant said her husband was planning to return to Malaysia with her. When asked if she had thought about when they would return, the applicant stated that she wished to return to Malaysia but perhaps in a year or two.

30. The applicant gave evidence her husband is a Christian who had never been to her home area of Pahang which was mainly Muslim. I discussed with her the information she had provided to the Tribunal in her written statement about the security situation in Sabah, asking if there was any reason why she would go to Sabah rather than return to her home in Pahang. The applicant stated that there was a possibility that she would follow her husband to Sabah, but she was not ready to do so yet. When I asked why not, she said she didn’t want to live in Sabah.

31. When I asked the applicant where she would go if she returned to Malaysia, she said she would probably visit her husband’s hometown. When I asked her if she had any fear of harm there, she said she had never been to Sabah but she had heard things from friends. Her husband lives in a rural area where they are mostly Christians and as a Muslim it may be hard for her to get halal food. Her husband will try and bring her to his village but she has no real fear of harm because she has never been there.

32. I discussed with the applicant that the refugee assessment required the harm she feared to extend across all areas of Malaysia and it didn’t appear that anyone would try to harm her in her home area of Pahang. The applicant agreed she can safely return to her home area of Pahang. She stated she would like to stay in Australia for another year or two in order to work legally and definitely wishes to return to Malaysia. She has only just got married and has many things still to discuss with her husband.

33. The Tribunal has considered the information in the Wikipedia article submitted by the applicant about cross-border attacks in Sabah. The Tribunal considers that article to be broadly consistent with that in the DFAT report which indicates that while Malaysia’s overall security situation is generally stable, there is a high threat of kidnapping in the coastal areas of eastern Sabah. DFAT notes that extremists based in the Southern Philippines are particularly active between the towns of Sandakan and Tawau in eastern Sabah.[1] DFAT further reports that male undocumented migrant workers from the Philippines and Indonesia are employed in the construction, palm oil and fishing industries in Sabah and Sarawak, leading to ethnic tensions in recent years between Indonesian and Filipino migrant workers which have in some cases led to fatalities.[2]

    [1] DFAT Country Information Report: Malaysia at 2.44

    [2] DFAT Country Information Report: Malaysia at 2.16

34. The Tribunal accepts the applicant has recently married another Malay national and that her husband is a Christian from Sabah, Malaysia. I note in that regard that DFAT reports that 75% of Malay Christians live in Sabah and Sarawak.[3] The Tribunal accepts that they intend to return to Malaysia together. The applicant’s evidence is that there is a possibility that she will eventually follow her husband to Sabah, but she is not yet ready to do so because she doesn’t wish to relocate to Sabah. The Tribunal finds that if she returns to Malaysia, the applicant will return to her home area of Pahang, Malaysia.

    [3] DFT at 3.23

35. As discussed with the applicant at hearing, the refugee assessment requires that the real chance of persecution extends to all areas of Malaysia. The applicant agrees that no one will seek to harm her for any reason in her home area of Pahang, Malaysia. The Tribunal finds there is no real chance she will be targeted for harm as a Muslim or because she is a Muslim woman who has married a Christian man if she returns to her home area of Pahang, Malaysia, now or in the reasonably foreseeable future. For these reasons the Tribunal finds that she does not have a well-founded fear of persecution in Pahang for reasons of her Muslim religion or her marriage to her Christian husband. It follows that she does not meet the definition of a refugee in s 5H.

36. 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 the Refugee Convention definition.[4]  I have found that there is no real chance the applicant will be targeted for harm as a Muslim or because she is a Muslim woman who has married a Christian man if she returns to her home area of Pahang. For the same reasons I do not accept there to be a real risk the applicant will be subjected to significant harm by any person or group if she returns to her home area of Pahang, Malaysia.

    [4] MIAC v SZQRB [2013] FCAFC 33.

    CONCLUSIONS

37. 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).

38. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

39. 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 any of the criteria in s.36(2).

    DECISION

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

    Alison Murphy
    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.

    …