1725827 (Refugee)

[2024] AATA 1122

1725827 (Refugee) [2024] AATA 1122 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725827

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Angela Cranston

DATE:3 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 3 January 2024 at 13:14pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – employment opportunities – fear harm from wife’s ex-husband – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 October 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 22 March 2017. In his application, the applicant stated the following:

I come to Australia at the first time because want to work for a 3 months. At the mean time, I meet up with a women and we are in love. I want marry her but I believe I cannot do that in my hometown because she having a problem with her previous marriage. My girlfriend had a problem with her ex husband. Beside, in my own country I don’t have a job for me to support our life if we got marriage and we need money to fight for her case with her ex husband…I am not even can support my family mum and dad also my brother and sister. I come from poor family at the small village. I am also not finish my school because I am a first in family and since small I have a go out and work to get some money to buy food for my family. That’s why I come to Australia, I believe I can contribute my skill and experience hard work by working in a farm in Australia.

Now I already have a baby girl with my girlfriend which is deliver on [date]. I really need your kind of consideration to allow me and my partner to build up our own life in Australia. We just want to live happily married together in this life. We want to have a peace of mind and environment to grow up my baby girl. My baby born here in [Hospital 1] and we still have a pending payment with them. We are really hope that you can help us to settle this matter too…I am also attached herewith the bill that we have to pay to the hospital. Attached all the documentation related to by baby with my girlfriend.

For your information, I have already apply for the visa before but I received invalid application from your department. Just because too busy to settle my partner pregnancy, I don’t make any application again and I really hope that I can get it from you soon. I really need to know about my baby status right now to make her birth certificate and identification in Australia. Pleas give me an advise regarding my visa to make me to stay here with my family. I believe Australia was the best country who can help people like me, looking for a new life and better future.

I also don't (stet) have any detail of my family in Malaysia because I don’t have any contact with them. My family don’t agree when I am with my girlfriend now. My family have their own choice of wife for me but I don't (stet) want to marry the girl. I have my own choice and I am happy to be with my girlfriend and my baby. We are really need help to make legally document and identification document for me and my baby. I also want to register for our marriage but my partner just got her full document such as cancellation of her previous marriage in our country. 

3.    The delegate refused to grant the visa and the applicant applied for review.

4.    The applicant appeared before the Tribunal on 17 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

5.    The applicant stated that his protection visa application had been read back to him and was correct. He stated that he arrived in Australia on a tourist visa [in] March 2015 that ceased three months later. Since then, he did not have any visa. 

6.    The applicant stated he initially came to Australia for tourism but after he exhausted his savings, he worked. In Malaysia, he worked as a [Occupation 1] and in Australia he was a [Occupation 2] and worked in [Occupation 3].

7.    The applicant stated he could not return to Malaysia because he was married with a child and his wife was abused by her ex-husband in Malaysia and could not return. He also stated her feelings would be disturbed because she would not be allowed to see her [children] who were currently in Malaysia and her ex-husband would disturb her.

8.    The applicant stated his wife had arrived in Australia three months after him. He stated she had applied for a protection visa.

9.    The Tribunal put to the applicant that in his protection visa application, he said he had a baby, his family did not agree with his relationship and that in Malaysia, he did not have a job that could support his life. The applicant stated he would suffer serious or significant harm if he returned to Malaysia because he only had 6-years education and job opportunities were difficult. He stated his child was in school and in Australia he had a good job as a [Occupation 4] in the [work sector]. He also stated his wife was scared to face her ex-husband. 

1. The Tribunal put to the applicant that the Malaysian workforce participation rate was 68%, he had worked in Malaysia and Australia, and it may be that if he returned, he could find work.

2. The Tribunal put to the applicant that it was looking at his and not his wife’s visa application but put to him that given his wife was now married and had not seen her ex-husband since she was in Malaysia, it may be difficult to accept that if she returned to Malaysia with the applicant, there was a real chance she would be harmed. He stated her ex-husband would not allow her to visit her children and would threaten her when she visited them.

3. The applicant’s wife stated she had a protection visa application before the AAT. She stated she married the applicant in 2017, and had not seen her ex abusive husband since 2014. She stated she could not return to Malaysia because she had been threatened by her ex-husband who had mental problems. When asked if she could contact the police, she stated there was a long queue, and she would get depressed.

4. The Tribunal asked what would happen if she returned to Malaysia with her current husband. She stated the police would be unable to help and her ex husband was able to do anything. When asked why her ex-husband would try to contact her given that she had not seen him since 2014 and she was with her current husband, she stated he would find them because he had put messages on facebook saying things about her and she also knew that from her Malaysian children, three of whom were living with him.  She stated he tried to make her look bad on facebook and in front of their children.    

5. The applicant’s wife stated her ex-husband had harmed her before and if he could not have her, he would not let anyone else have her.

6. The Tribunal put to the applicant that it may find it difficult to accept that if he returned to Malaysia he would be harmed because of his wife’s previous marriage. The Tribunal also put to him this claim was not in his protection visa application and she had not seen her ex-husband for 10 years. He stated if his wife’s ex-husband came to know of her arrival in Malaysia, it may become worse. The Tribunal put to him that may be speculative.

7. The applicant stated he did not want to return to Malaysia and leave his wife and daughter in Australia. He also stated if he returned to Malaysia, he may commit suicide if his wife and child remained in Australia. 

8. The Tribunal subsequently wrote to the applicant stating the following:

The Tribunal has considered your wife’s claims that her ex-husband will somehow
try to harm her if she returns but has found the claim is speculative (see AAT
Decision 2016687).This is relevant because it may not accept that it is reasonably foreseeable as opposed to a mere possibility that if you return to Malaysia, that there is a real chance that you will be pursued or harmed by your wife’s ex-husband now or in the reasonably foreseeable future. If the Tribunal find this, then subject to your comments, it would affirm the decision under review.

1. The Tribunal did not receive a response within the requested time. 

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

Country Information

1. According to DFAT Country Information Report Malaysia 29 June 2021:

Employment

1.1   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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. As a preliminary matter, the Tribunal notes that there is a certificate purportedly issued under paragraph 438(1)(b) of the Migration Act relating to folio 74 of the Department's file [number]. The certificate stated that the disclosure of the information to which the certificate related would be contrary to the public interest because the folio contained documents or information that are internal departmental working documents.

2. The Tribunal considers this folio irrelevant to its assessment of the protection visa application and has not taken it into account.

3. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Malaysia and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

4. At hearing the applicant stated that in Malaysia he worked as a [Occupation 1] and in Australia [Occupation 2] and in [Occupation 3] and in [Occupation 4]. He also stated he could not return to Malaysia because he was now married with a wife and child and his wife had been abused by her ex-husband in Malaysia and could not return.

5. The applicant also claimed that his wife has a problem with her ex-husband. He also stated that in Malaysia he did not have a job to support their life and they needed money to fight for her case with her ex-husband. He also stated that he did not finish his school and believed he could contribute his skills and experience by working in Australia.

6. The Tribunal finds the applicant’s concerns as articulated at hearing seem to be that he will find it had to get a good job. While clearly desirable, the applicant’s ambitions to obtain a good job do not make him a refugee. Indeed, the applicant has shown himself to be industrious and resourceful enough to work in Australia at many jobs, and the country information suggests the labour participation rate in Malaysia is 68.5 percent.  There is also nothing in the applicant's past as presented at hearing that suggests that he will be denied employment commensurate with his education and experience. In these circumstances, the Tribunal is not satisfied that the applicant will be denied employment in Malaysia let alone for a refugee reason.

7. The applicant has not made a claim that he fears harm from his wife’s ex-husband however given the applicant’s wife appears to have raised this claim,  the Tribunal has dealt with it.

8. The Tribunal has considered the applicant wife’s claims that her ex-husband will somehow try to harm her if she returns but has found the claim is speculative (see ART Decision 2016687). It therefore does not accept that it is reasonably foreseeable as opposed to a mere possibility that if the applicant returns to Malaysia, there is a real chance the applicant will be pursued or harmed by his wife’s ex-husband if he returns to Malaysia now or in the reasonably foreseeable future.

1. 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 the Refugees definition. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. 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 rejected the claims made on the basis that the applicant’s wife’s ex-husband will harm him. The applicant has worked in Australia and the country information suggests the labour participation rate in Malaysia is 68.5 percent and there is nothing in the applicant's past as presented at hearing that suggests that he will be denied employment commensurate with his education and experience. In these circumstances, the Tribunal is not satisfied that the applicant will be denied employment commensurate with his education and experience. The Tribunal is therefore not satisfied that there is a real risk that the applicant will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act, in the future.

3. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. 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

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

Angela Cranston
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…