1720998 (Refugee)

1720998 (Refugee) [2023] AATA 984 (6 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720998
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Katsambanis
DATE:6 February 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 February 2023 at 10:53am
CATCHWORDS
REFUGEE – protection visa – Malaysia – issues relating to obtaining employment – an inability to save money did not appear to be a ground for protection – current economic situation – criminal record – conflicting, inconsistent and contradictory information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
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 dependant.
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 4 September 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 25 July 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 23 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this case are whether there is a real chance that if the applicant returns to Malaysia he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act 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 for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
In his protection visa application, the applicant claimed that he was born on [date] in Selangor, Malaysia. He was of Malay ethnicity and Muslim religion. He could speak, read and write Malay and English. His parents were currently living in Malaysia.
The applicant claimed that he arrived in Australia on [date] May 2017 from Malaysia on a valid Australian visitor visa. He provided copies of his Malaysian passport and Malaysian national identity card. Prior to this arrival in Australia, he had never travelled outside Malaysia.
The applicant claimed that he had lived at the same residential address in Selangor from birth until he departed Malaysia.
In his application form, the applicant stated that his only employment in Malaysia was as a general worker for a construction company called [Company1] from January 2014 until he departed Malaysia.
In relation to his education in Malaysia, the applicant stated that he had completed primary school in Malaysia and had subsequently completed high school in December 2010. He listed no other courses or studies.
The applicant claimed that he left Malaysia because of financial and political issues that made him unable to get a job and unable to generate money. He claimed that the ‘production house’ where he used to work had some financial problems.
The applicant stated that if he returned to Malaysia, he would be a jobless adult, he could not afford house rent and he had no other place to live. He claimed that he had sought help from a government [organisation], but his request was denied. He also stated that he moved to Kuala Lumpur city to find a job but that did not end up how he wished.
The applicant stated that he believed that if he returned to Malaysia, he still could not find a job and could not afford to live there. He had sought help in the past from the government, but he had been ignored.
The applicant also claimed that he could not relocate within Malaysia to avoid harm because he had no money to start over and the economy was getting worse in Malaysia, so it made it harder for him to relocate.
The delegate refused to grant the applicant a protection visa on 4 September 2017.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 8 September 2017. The applicant also provided the Tribunal with a copy of the delegate’s decision and a copy of the accompanying notification letter.
On 11 May 2022 the Tribunal wrote to the applicant seeking further information from him pursuant to s 424(2) of the Act.
In a response received on 19 May 2022, the applicant stated that amongst the reasons he had for seeking protection were political issues that have never been resolved, one of which is the current economic situation in Malaysia. He claimed that the value of the Malaysian ringgit had depreciated compared to before and the cost of living was increasing. As a citizen, he felt the pain of living with a minimum salary of 1,500 ringgit per month. He claimed that as a graduate of [Institution 1] in 2015/2016, he found it difficult to get a permanent job with a [company] due to the oil crisis that existed at that time.
Tribunal Hearing
At the hearing held on 23 January 2023, the applicant stated that his mother was still alive, but his father had passed away of a heart attack in 2001. Prior to his death, his father had worked as a contractor. His mother had never worked and had always been a housewife. After his father died, his mother received the father’s wages as a form of income support or pension.
The applicant claimed that he was one of [number] siblings and added that he was the [number] of these siblings. One of his siblings had passed away, and he had [number of siblings] who were still alive. His siblings ranged in age from [age] to [age] and were all currently living in Malaysia. Only his eldest brother was married. One brother and one sister were currently living with his mother. His other siblings were living in their own properties.
The applicant stated that he grew up in Selangor. He completed the [number] form of his secondary education and then studied a [course] [for] six months at an institution called [Institution 1], which he described as the [specified] education academy in Malaysia. The applicant claimed that he finished high school in the year 2010 and had studied at [Institution 1] around 2014 to 2015. Between completion of high school and his studies at [Institution 1], the applicant claimed that he had worked as a labourer in various companies with his brother.
The applicant claimed that the [Institution 1] was located in [City 1], which was around [few] hours from his home in Selangor. He claimed that during his studies at this academy he resided in student hostel accommodation on campus. He claimed that when he completed these [studies], he was waiting to obtain employment but there were bad times in Malaysia due to the oil crisis. The applicant claimed that instead of being able to secure employment in the [industry], after he completed his studies at [Institution 1], he worked with his brother who owned a small [shop]. When asked if he had undertaken any other work apart from the work with his brother during this period of time, the applicant indicated that he had not done so.
The applicant confirmed that he had never been married and had no children. He claimed that apart from the brief period living in student hostel accommodation in [City 1], he had always resided in the family home in Selangor prior to coming to Australia. The home is owned by his mother.
The applicant claimed that he had never been a member of any political party in Malaysia and had never been active in politics in any way in the past in Malaysia.
When asked if he had ever been arrested, detained or charged with any criminal offence in Malaysia, the applicant stated that he had been convicted once for drug possession in 2016. He claimed that he served a term of imprisonment of around 12 months for this conviction and added that he was accused together with another person who had received a longer sentence because this person was the one who was actually in possession of the drugs. After further discussion, the applicant clarified that he had been sentenced for this crime around October 2015, he had served around three months in remand prior to the sentencing and he was released from imprisonment around April 2016.
When asked what problems he had experienced in the past in Malaysia before coming to Australia, the applicant stated that he had difficulty obtaining employment after he was released from prison. He added that he had also experienced difficulty obtaining employment after he completed his studies in 2015 due to the oil crisis. However, the applicant confirmed that after release from prison he had been employed working for his brother before coming to Australia. He later added that he only assisted his brother when the brother needed him, so it was not regular work or a regular income. He also stated that his brother’s business was called [name] and was located in Selangor.
The applicant confirmed that apart from these issues relating to obtaining employment, he had not experienced any other problems in the past in Malaysia.
The Tribunal pointed out to the applicant that he had mentioned political issues in Malaysia in his protection visa application form. The applicant clarified that the problems he was referring to were related to the introduction of GST in Malaysia. He added that middle income families had been hit hard by the introduction of GST and were opposed to this tax. The applicant agreed with the Tribunal that his reference relating to political issues in his application form could be summarised as ascribing blame to politics and politicians for worsening economic circumstances that led to the availability of less jobs for people like the applicant in Malaysia.
The applicant stated that he came to Australia in May 2017 because he wanted to help his family. He had applied for many jobs but had been unsuccessful, so he decided to leave Malaysia. A friend who had recently returned from Australia suggested that the applicant come to Australia to try to change his life. The applicant wanted to be independent and get a job upon arrival in Australia. He also wanted to make sure he did not get involved in any criminal activities.
When asked what visa he had used to come to Australia, the applicant initially claimed he had arrived in Australia on a three-month working holiday visa. He then stated that he was uncertain whether he had used a visitor visa or a working holiday visa to come to Australia. When it was pointed out to the applicant that Australia did not offer working holiday visas to Malaysia nationals, the applicant agreed that he had arrived in Australia on a visitor visa. He then added that he applied for another visa after three months in Australia.
The applicant agreed that the visa he had used to enter Australia did not permit him to work in Australia. When asked how he expected to obtain employment in Australia if his visa did not permit him to work in Australia, the applicant stated that upon arrival he worked for cash for three months with an agent. After three months, he applied for another visa and started to pay tax on his earnings. He claimed that in the three-month period when he was working for cash he had been working on [farms]. He claimed that the agent he was working for at the time was a Malaysian Chinese male whose name was [Mr A]. The applicant claimed that he would contact [Mr A] by telephone but when asked if he could provide [Mr A]’s telephone number to the Tribunal, the applicant claimed that he had changed devices and he no longer had this person’s number.
The applicant claimed that he was currently employed as a [occupation] at [a] Company located in [Town 1], Western Australia. He had worked in this position for around one year. Prior to this, he had been employed as a general farm hand at [a] farm [for] about four years. When he was working at this farm he was commuting from Perth, however he had moved to [Town 1] since he secured his current job.
The applicant claimed that a friend named [Mr B] had assisted him to complete his protection visa application form. He did not know the surname of this person but claimed that [Mr B] had now returned to Malaysia.It was pointed out to the applicant that at question 6 of part B of this application form he had ticked the box that indicated that he had not received any assistance when completing the form. In response, the applicant claimed that [Mr B] had filled out the form, but the applicant was next to him. He added that he did not have any knowledge about these things.
The applicant was asked why he had not listed any of his siblings on the application form. He responded that he thought he had done so. When it was pointed out to the applicant that he had not listed any siblings on his application form, he stated that [Mr B] had asked him for those details and the applicant had provided them to him, so he assumed that they were on the form.
It was pointed out to the applicant that on this application form he had stated that his father was still alive and currently residing in Malaysia. The applicant responded that he had not listed his birth father on the application form but had instead listed his stepfather. The applicant claimed that his stepfather’s name was [name] and restated that this was the person the applicant had listed on the application form. He also stated that his birth father’s name was [name].
On the basis of these responses, the Tribunal pointed out to the applicant that the name that was written on his protection visa application form was the name of his birth father rather than the name of his stepfather. It was also pointed out to the applicant that it was in reference to his birth father that he had written on this form that he was currently residing in Malaysia. In response, the applicant stated that he did not know English very well when he came to Australia. After [Mr B] had filled out the form, he had given it to the applicant to look over, but he did not really know what he was looking at.
The Tribunal asked the applicant why his friend, [Mr B], would write down the name of the applicant’s birth father on the application form if the applicant had supplied [Mr B] with the name of his stepfather. The applicant responded that [Mr B] did not ask him about his stepfather. On the basis of this answer, the Tribunal asked the applicant why he had stated a few minutes earlier at the hearing that it was his stepfather who had been listed on the protection visa application form. The applicant responded that he had not made this statement but had simply wanted to ask the Tribunal whether it was his stepfather listed on the application form. When the Tribunal pointed out to the applicant that his earlier statement that his stepfather was the person listed on the application form appeared to be a clear and direct statement rather than a question or enquiry, the applicant denied that this was the case and added that he recalled that he had never provided his stepfather’s name before.
On the basis of these answers, the Tribunal raised its concerns with the applicant that he appeared to be changing his evidence during the hearing to cover the failings of his previous answers. The applicant denied that this was the case.
The applicant indicated that he had not experienced any problems since he had been living in Australia.
The applicant insisted that he had not been asked any question about historic criminal convictions in Malaysia when he completed his online application for an electronic travel authority to come to Australia.
It was pointed out to the applicant that the protection visa application form he had completed and lodged with the Department in July 2017 contained a specific question, question 86, which sought details of any previous criminal convictions of the applicant. In his response to this question, the applicant had indicated that he had not had any such previous criminal convictions. The applicant responded that he did not know English very well and his friend had helped him. He claimed that the friend had never read out this part of the form to him.
The Tribunal asked the applicant why it should accept that a friend had assisted him with completing the form, given that the applicant had specifically stated on the form that he had not received any such assistance from any person. He responded that perhaps it was possible that [Mr B] perceived that the applicant was completing the form, because the applicant was next to [Mr B] at the time.

The applicant was asked why he signed a declaration at the end of the form indicating that everything he had stated in the form was true, given that he had not been truthful about his previous criminal convictions. The applicant responded that his friend had assisted him and had never told him about any declaration or asked him any of those questions. However, the applicant agreed that he personally signed this declaration in front of a pharmacist but added that [Mr B] told him to go there and get a signature.
The applicant was asked what he feared about returning to Malaysia now or in the reasonably foreseeable future. He responded that he was afraid that it would be difficult for him to get a job because of his criminal record. When he was asked why he could not be employed by his brother as he had done so in the past, the applicant stated that the business had only operated for five or six months.
On the basis of this answer, it was pointed out to the applicant that earlier in the hearing he had stated that he had worked for his brother on and off since 2010 and had been employed by his brother from the time he was released from prison around April 2016 until the time he came to Australia in May 2017, which would indicate that the business had been operating for longer than five or six months. The applicant responded that after the five- or six-month period he had worked in construction as a labourer. However, when asked who he had been employed by when he was working as a labourer, the applicant indicated that he did not know the name of the business. He added that he also did some road work at the time as well.
The Tribunal pointed out to the applicant that his evidence about his employment in Malaysia in the past throughout the hearing would indicate that he had managed to obtain regular employment in various types of businesses in Malaysia, which would contradict his claims that he had struggled to find employment in Malaysia. In response, the applicant stated that before his studies he was only working part-time.
The applicant clearly stated at the hearing that apart from his concerns relating to an inability to obtain employment upon return to Malaysia, he had no other fears or concerns about returning to Malaysia. The applicant was asked why he had not listed his studies at the [Institution 1] on his protection visa application form. He responded that he thought he had done so and recalled that he had given these details to his friend who had assisted him with the form. When asked why his friend would not list these studies on the form if the applicant had given him the details, the applicant responded that he did not know, and added that he had no idea.
It was pointed out to the applicant that on his protection visa application form the only employment he had listed in Malaysia in the past was work at a construction company called [Company 1] between 2014 and when he came to Australia. However, he had made no mention of such employment at the Tribunal hearing. In response, the applicant stated that he worked at this company as an assistant before he went to jail. He also added that he worked for them part-time after he had been released from jail.
It was pointed out to the applicant that in his submission to the Tribunal in May 2022 he had stated that he had studied at [Institution 1] between 2015 and 2016. However, based on his evidence at the hearing, this would have been an impossibility given that he was imprisoned at that time. In response, the applicant stated that he believed the studies were around 2014 or 2015. When asked why he would state clearly in his submission that the studies were in 2015 and 2016 if they had occurred in 2014 or 2015, the applicant responded that he was not sure and added that he had records. The Tribunal then pointed out to the applicant that it was open for him to provide any documents in support of his claims to the Tribunal.
The Tribunal pointed out to the applicant that country information from sources including the Department of Foreign Affairs and Trade and from the Malaysia government indicated that Malaysia was a middle-income nation with an economy that had been on an upward path since the Asian financial crisis in 1997 – 1998. This country information indicated that Malaysia had experienced some economic issues in the past few years due to the Covid pandemic, but this was not unique to Malaysia and had been experienced by many other countries including Australia. The available country information indicated that the Malaysian economy was still strong, unemployment was relatively low (at levels of less than 4%) and that workers from neighbouring countries were being attracted to Malaysia to fill job opportunities that could not be filled by the local labour force. It was pointed out to the applicant that this country information would indicate that, if he returned to Malaysia, he would be able to obtain some employment, even if it was not his preferred employment, and that this employment would enable him to sustain himself in Malaysia just like he had done in the past prior to coming to Australia.
When asked to provide comment or a response to this country information, the applicant initially stated that he had no comment to make. He then added that he did not know the current situation in Malaysia, but he knew that a lot of young people like himself were facing unemployment. He asked why young people like himself would leave the country if there was a lot of employment as the country information suggested.
It was pointed out to the applicant that, based on his own evidence, he had been able to secure employment in the past in Malaysia both before he went to prison and after his release from prison. In response, the applicant stated that this employment was just sufficient to help his family, but it was insufficient to enable him to save money. However, the applicant agreed with the Tribunal that an inability to save money did not appear to be a ground for protection.
The applicant indicated that he did not have any other matters that he wanted to discuss with the Tribunal. He agreed that he would provide any further supporting documents or submissions to the Tribunal by 27 January 2023.
The applicant then asked the Tribunal if it could delay sending him home to Malaysia until July to enable him to process a tax refund and get access to his superannuation whilst he was still in Australia. The Tribunal pointed out to the applicant that these were not matters that could be actively considered by the Tribunal.
Post Hearing Submission
On 26 January 2023 the applicant provided the Tribunal with a series of documents evidencing his studies at the [Institution 1] academy. The dates on the various certificates that were provided range from December 2014 to June 2015. He also provided a copy of the front cover and biodata pages of a Malaysian [ID document] issued in his name.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is no issue as to identity or nationality. The applicant arrived in Australia on a valid Malaysian passport and as the holder of a valid Australian visitor visa. The Tribunal therefore accepts that the applicant is a national of Malaysia and has assessed his claims accordingly.
There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
In his initial application for protection the applicant claimed that he left Malaysia because of financial and political issues that prevented him from obtaining a job and earning money. He also claimed he feared that on return to Malaysia he would not be able to obtain a job or sustain himself because of these financial and political issues. In his written submission to the Tribunal on 19 May 2022 the applicant stated that he was seeking protection because of unresolved political issues including the current economic situation in Malaysia, the high cost of living and the lack of employment opportunities in [specified industry].
However, at the Tribunal hearing the applicant clearly stated that he had never been a member of any political party in Malaysia and had never been politically active in any way in the past in Malaysia. He agreed with the Tribunal that his reference to political issues was simply ascribing blame to politics and politicians for the state of the economy in Malaysia. The applicant also made it clear that the basis of his fears about returning to Malaysia revolved around his fear about being unable to obtain employment in Malaysia because of his past criminal record and for other reasons.
Accordingly, based on these clear statements by the applicant at the hearing, the Tribunal finds that the applicant has not made any claims that he fears harm if he returned to Malaysia now or in the reasonably foreseeable future because of his actual or imputed political opinion and no such claims arise from the facts before the Tribunal.
The Tribunal accepts that the applicant completed some [specified] studies in Malaysia in 2014 and 2015. The Tribunal also accepts that the applicant was convicted and jailed in Malaysia for crimes relating to drug possession.
Despite the claims made in the applicant’s protection visa application form that he was unable to obtain a job in the past in Malaysia, the applicant has provided evidence over time that he was gainfully employed in Malaysia in the past. In his application form he clearly stated that he had worked for a construction company from January 2014 until he came to Australia in 2017. At the hearing, the applicant claimed that he had worked for this company both before he went to jail and after his release to jail. He also claimed that he had worked with his brother, including in a business owned by his brother, both before he commenced his [studies] and after he was released from jail. He also claimed at the hearing that after his release from jail he did some work as a labourer for an unnamed construction company and also did some road work before coming to Australia.
The Tribunal accepts that after he completed his [studies], the applicant was unable to obtain employment in the [industry] in Malaysia. The Tribunal accepts the applicant’s explanation at the hearing that this was due to a crisis within the oil industry at the time. The applicant did not claim that his past criminal record prevented him from obtaining employment within the [industry], however the Tribunal accepts that this criminal record may impact on the applicant’s ability to work within the [industry].
However, based on the applicant’s evidence over time, it is clear that he was able to obtain employment on a regular and ongoing basis in the past in Malaysia. Although this employment may have sometimes been part-time and may have required the applicant to fill a number of short-term positions rather than securing one long-term position, on the evidence before it the Tribunal finds that the applicant was able to obtain employment in the past in Malaysia both before he went to jail and after his release from jail and the Tribunal further finds that the applicant was not denied the ability to obtain employment either because of the state of the economy in Malaysia or because of his criminal record or for any other reason.
In relation to the applicant’s fears of harm if he returned to Malaysia now or in the reasonably foreseeable future for reasons that he would not be able to obtain a job due to his criminal record, the Tribunal has considered country information from the Department of Foreign Affairs and Trade (DFAT) indicating that Malaysia is an upper middle-income, export-oriented economy with a real GDP growth in 2019 (prior to the Covid-19 pandemic) of 4.3% and a per capita GDP of USD11,418[1]. Malaysia’s economic performance over several decades has led to a significant reduction in poverty[2]. Despite an economic contraction in 2020 due to Covid-19 and a decline in oil prices, the economy was expected to rebound strongly in 2021 with growth forecast to be between 6% and 7.5%[3].
[1] Department of Foreign Affairs, DFAT Country Information Report Malaysia, 29 June 2021, p10, para 2.9
[2] Ibid, p11, para 2.11
[3] Ibid, p11, para 2.12
Specifically in relation to the employment situation in Malaysia, DFAT reports as follows:
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.
2.14 The International Labour Organization estimated in 2020 that around 3 million migrants (including irregular migrants) worked in Malaysia, constituting up to 30 percent of the country’s workforce. Of the migrant worker population, 1.7million were registered, and an estimated 1.9 million were undocumented (irregular) migrants, as at 2017. Recent years have witnessed a rise in increasingly virulent rhetoric against migrants within the popular media, blaming migrants for a host of social problems ranging from electoral fraud to increases in street crime. Scapegoating of migrants, regardless of realities, has contributed to an environment where exploitation and abuse are sometimes viewed as acceptable. In May 2020, during the COVID-19 pandemic, the government conducted mass arrests of undocumented migrants in coronavirus hotspots in order to prevent the spread of the disease to its own ‘innocent citizens’, according to one government minister[4].
[4] Department of Foreign Affairs, DFAT Country Information Report Malaysia, 29 June 2021, p11, para 2.13-2.14
More recent figures from the Malaysian government indicate that the unemployment rate in Malaysia fell to 3.7% in July 2022[5]. The figures for November 2022 show that this low rate of unemployment remains stable with a small further decline in the unemployment rate between July 2022 and November 2022 to a rate of 3.6%[6].
[5] Department of Statistics Malaysia Official Portal (dosm.gov.my), accessed 1 February 2023
[6] Department of Statistics Malaysia Official Portal (dosm.gov.my), accessed 1 February 2023
The Tribunal accepts that, due to his criminal record, the applicant may be precluded from obtaining employment in some sectors of the economy or in some specific positions in Malaysia that require an employee to not have any past criminal record, as also occurs in other countries including Australia. These sectors may include the [specified] industry, where the applicant’s criminal record may be viewed negatively despite his [qualifications]. The Tribunal also accepts the applicant’s claims at the hearing that he may not be able to earn as much money working in Malaysia as he could do in Australia, and that after providing for himself and his family he may not be able to save money from his earnings in Malaysia. However, as discussed with the applicant at the hearing, the inability to save money does not enliven any protection obligations.
The Tribunal has considered the applicant’s comments at the hearing where he stated that the number of young people like himself leaving Malaysia because of unemployment would contradict the country information referred to above about the relatively healthy state of the economy and the employment market in Malaysia. However, the Tribunal has placed significantly more weight on the direct evidence from official sources such as DFAT and the Malaysian government than the anecdotal evidence of the applicant. This is particularly the case because, as discussed with the applicant at the hearing, his own direct evidence about having regular employment in Malaysia both before he went to jail and after his release from jail would contradict his statement that young people like himself were leaving Malaysia because of unemployment.
Despite the inability to be employed in some sectors or in some specific positions in Malaysia because of his past criminal record, based on the country information referred to above indicating that unemployment in Malaysia is at low levels and based on the finding made above that the applicant was able to obtain employment in the past in Malaysia both before he went to jail and after his release from jail, the Tribunal finds that if the applicant returned to Malaysia now or in the reasonably foreseeable future he would be able to obtain some form of employment in Malaysia even if it is not his preferred employment in the [industry] and even if the earnings from this employment may not enable him to save any money. Based on this finding, and based on the applicant’s clear statement at the hearing that any employment earnings in Malaysia would just be enough to enable him to provide for himself and his family but would not allow him to save any money, the Tribunal also finds that the income from this employment would enable the applicant to provide for himself and his family and therefore the applicant’s economic circumstances resulting from a lower income generated from his employment in Malaysia would not threaten his capacity to subsist or otherwise amount to serious harm of any kind.
Accordingly, the Tribunal finds that the economic circumstances leading to a lower income for the applicant in Malaysia than he could earn in Australia do not amount to serious harm for the purposes of s 5J(4)(b) of the Act having regard to the non-exhaustive definition of serious harm pursuant to s5J(5) of the Act.
The applicant did not make any claims, and no claims arise on the facts before the Tribunal, that he fears any harm if he returned to Malaysia now or in the reasonably foreseeable future for any other reason, including for reasons of his past drug use, his Malay ethnicity or his Muslim religion.
Having considered all of the applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has already found that the applicant would be able to obtain employment if he returned to Malaysia and that, through the income from this employment, he would be able to provide for himself and his family so that his capacity to subsist would not be threatened. On the basis of these findings, the Tribunal finds that the nature of this feared harm about earning less income in Malaysia does not constitute significant harm as exhaustively defined in s 36(2A).
Apart from his fear that his past criminal history may limit his employment prospects, which has been dealt with above, the applicant has not made any claims that his past criminal history may cause him any ongoing issues in the future in Malaysia and no such claims arise from the facts before the Tribunal.
The applicant has not made any other claims that he fears harm for any other reason if he returned to Malaysia and no other claims arise from the facts before the Tribunal.
Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to 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) 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.
Peter Katsambanis
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.
…

[2023] AATA 984

6 February 2023

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