1725851 (Refugee)

1725851 (Refugee) [2018] AATA 3358 (19 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1725851
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Joseph Lindsay
DATE:19 July 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 July 2018 at 4:16pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Economic hardship – Fear of harm from inability to repay debts and loans – Claims written by another person – Provided false information – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 28 November 2016.
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 (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) of the Act. 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) of the Act, 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 s.5J(2)-(6) and s.5K-LA of the Act, 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 s.36(2A) and (2B) of the Act, which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant arrived in Australia after departing Malaysia on 24 August 2016 while holding a visitor visa and then the applicant applied for a Class XA Subclass 866 visa on 26 September 2016 and was granted an associated bridging visa.
The applicant’s type written claims were contained in his 866 Form and they included, in summary, the following questions and responses:
·     Q89: Why did you leave that country? A. I AM LEAVING THE COUNTRY BECAUSE THE DEMOCRATIC SYSTEM PRACTICED HAS RUINED MY COUNTRY UNDER LEADERSHIP DATO SERI NAJIB TUN RAZAK SUMMARY NO LONGER TO GET PEOPLE AND HAVE MANY INVESTOR AND SHUT OUT OF THEM, RESULT OF THE MALAYSIA PUBLIC WORK THAT HAVE TO BE REMOVED UNEMPLOYED.
·     Q90: What do you think will happen to you if you return to that country(s)? A. TO CONTINUE LIVING THE MOST PRESSING THEM HAD TO BORROW MONEY FROM FINANCIAL COMPANIES ARE NOT LICENSED.
·     Q91: Did you experience harm in that country? A. Yes. AMONG THEM INCLUDING ME CAN NOT PAID MORE DEBT INCREASED.
·     Q92: Did you seek help within the country(s) after the harm? A. No. MALAYSIA IS AMONG THE HIGHEST DEBT WITH WOLD BANK.
·     Q93: Did you move, or try to move, to another part of that country(s) to seek safety? A. No. MORE POOR COUNTRIES BUT INCREASED MORE CORRUPTION.
·     Q94: Do you think you will be harmed or mistreated if you return to that country(s)? A. Yes. WHEN PEOPLE SPEAK ABOUT THE TRUTH, THEY WILL BE JAILED OR THEY WILL KILLED BY THE ASSASSIN.
·     Q95: Do you think the authorities of that country (s) can and will protect you if you go back? A. No. I HAVE DECIDED TO ESCAPE INTO AUSTRALIA, BECAUSE I AM SURE THE AUSTRALIA GOVERNMENT GIVE HOPE PEOPLE LIKE MY AND MANY MORE PEOPLE MALAYSIA OTHER.
·     Q96: Do you think you will be able to relocate within that country(s)? A. No. I AM THAT THE GOVERNMENT AUSTRALIA EXPECT ASSESSING THE FAIR AND I SAY A BIG THANK YOU TO THE AUSTRALIA GOVERNMENT PROVIDE PROTECTION FOR ME.
On 18 November 2016, the Department wrote to the applicant indicating that their visa application was invalid as he had not provided personal identifiers with his application.
On 28 November 2016, the applicant lodged another protection visa application. This time, the applicant’s claims were as follows:
·     Q89: Why did you leave that country? A. I AM LEAVING THE COUNTRY BECAUSE THE DEMOCRATIC SYSTEM PRACTICED HAS RUINED MY COUNTRY UNDER LEADERSHIP DATO SERI NAJIB TUN RAZAK SUMMARY NO LONGER TO GET PEOPLE AND HAVE MANY INVESTOR AND SHUT OUT OF THEM, RESULT OF THE MALAYSIA PUBLIC WORK THAT HAVE TO BE REMOVED UNEMPLOYED.
·     Q90: What do you think will happen to you if you return to that country(s)? A. TO CONTINUE LIVING THE MOST PRESSING THEM HAD TO BORROW MONEY FROM FINANCIAL COMPANIES ARE NOT LICENSED.
·     Q91: Did you experience harm in that country? A. Yes. When the Police try to break the rally of BERSIH, they tear the gas and asid water.
·     Q92: Did you seek help within the country(s) after the harm? A. Yes. AMONG THEM INCLUDING ME CAN NOT PAID MORE DEBT INCREASED.
·     Q93: Did you move, or try to move, to another part of that country(s) to seek safety? A. No. MORE POOR COUNTRIES BUT INCREASED MORE CORRUPTION.
·     Q94: Do you think you will be harmed or mistreated if you return to that country(s)? A. Yes. WHEN PEOPLE SPEAK ABOUT THE TRUTH, THEY WILL BE JAILED OR THEY WILL KILLED BY THE ASSASSIN.
·     Q95: Do you think the authorities of that country (s) can and will protect you if you go back? A. No. I HAVE DECIDED TO ESCAPE INTO AUSTRALIA, BECAUSE I AM SURE THE AUSTRALIA GOVERNMENT GIVE HOPE PEOPLE LIKE MY AND MANY MORE PEOPLE MALAYSIA OTHER.
·     Q96: Do you think you will be able to relocate within that country(s)? A. No. I AM THAT THE GOVERNMENT AUSTRALIA EXPECT ASSESSING THE FAIR AND I SAY A BIG THANK YOU TO THE AUSTRALIA GOVERNMENT PROVIDE PROTECTION FOR ME.
The Minister’s delegate refused to grant the protection visa on 4 October 2017.
On 23 October 2017, the applicant applied to the Tribunal to have the delegate’s refusal decision reviewed. The decision record was attached to this review application.
At the hearing on 15 March 2018, the applicant indicated that another person had written their claims, and that those written claims were not actually their claims. The applicant indicated that he was in Australia to work and earn money to help support his family members back in Malaysia. The applicant indicated that he had lost his job in Malaysia, so he came to Australia to find work. The applicant has a diploma [and] is hoping to ultimately get an office job. The applicant had an office job previously in 2016 when he worked for six months before losing his job. His previous job was to process [application] for [certain people]. However the applicant did not process the applications within the relevant timeframe and was subsequently dismissed from that job. Two months later, the applicant came to Australia. Before he left Malaysia, the applicant sold [goods] for two months in Melaka (also known as ‘Malacca’). The applicant indicated that he was not married or had a partner and he did not have children, just that he wanted to help his parents and [brother] and [sister] (who has a child whose husband works but does not make enough to support his family). Since he has been in Australia the applicant has been able to support all of these family members including another [sibling]. The applicant works at a [farm] and has been doing this for three months. The applicant indicated his family were not really relying on him but he felt sympathy towards them so wished to help as best he could.
The applicant indicated he used ‘[money transfer service]’ to send money back to Malaysia. He would earn $[amount] per week, send $[amount] to Malaysia and live on $[amount]. The applicant said that he liked it here because living expenses were cheap and he lived in a share house with five others. When asked whether his family expects him to do what he is doing for them, the applicant indicated his family doesn’t really expect him to do anything for them, they wish for him to take care of himself but he himself feels he ought to help them out. The applicant indicated he could tell when they were in financial hardship and at those times he would help them out.
When asked what would happen to him if he went back to Malaysia, the applicant indicated that if he returned he would have no choice but to do whatever it takes to survive and may set up a road stall by the roadside, and would do it all legally.
When asked about his written application, the applicant indicated he did read the form but not his claims, because the person who filled in the form had completed the claims at that time. The applicant indicated that the person who completed his application form for him got him to sign a blank form.
The Tribunal put to the applicant that when a person signed a protection application form, that person signs that they acknowledge some declarations, including ‘the department is committed to treating you with honesty and fairness and expects in return that you will tell the truth in this application’ and ‘WARNING: Giving false or misleading information is a serious offence’. The Tribunal asked the applicant if they knew what an offence was, and the applicant indicated they did not know what an offence was. The applicant indicated that when he signed the form, the person filling out the form was with him and that the claim for protection that was to have been put on the form was economic hardship. The Tribunal put to the applicant that he indicated he relied on that person completing the application for him, and the applicant responded that he trusted him.
The Tribunal asked the applicant whether he read the claims and whether he knew what they said, to which he said he did not read them in detail. The Tribunal put to the applicant that it was not a trivial circumstance to merely sign a blank application and rely on what another person wrote into the form, without even reading and understanding what the written claims said. The Tribunal put to the applicant that this indicates the applicant did not take his obligation in completing the form seriously, where in response to the question ‘did you receive help in completing this form, the applicant ticked ‘no’. The Tribunal asked the applicant whether the signature on the form was his signature, and the applicant agreed that it was his signature.
The Tribunal put to the applicant that these circumstances indicated that his approach to completing the form was quite reckless: he signed a blank application form, he relied on someone telling him what his claims were, and he was not convincing the tribunal that he knew what his written claims were. The Tribunal put to the applicant that what he said at the beginning of the hearing is not reflected in what was written in the application. In response, the applicant asked the Tribunal what was the difference between what he said and what was said in the application. The Tribunal then went through the claims.
Before the Tribunal did this, the Tribunal asked the applicant whether he and others like him understood the potential seriousness of what they were doing when they got others to do their applications for them. He said they never talked about that, because all he knew is that he was in a foreign country and that he needed to stay here; he had his reasons and he gave it to someone who is an expert to deal with it.
The Tribunal asked him whether he thought this was reasonable, to which he indicated that at the time he thought his actions were reasonable, but having heard what had been discussed at the Tribunal he may need to reconsider.
The applicant said he paid $[amount] to someone to do their application, a person who was not an agent. He said his friend said he was an agent but he had his doubts. The Tribunal indicated that if the person was an agent they ought to have said so, and they would have been registered. The Tribunal indicated its concern that there are people out there improperly doing these applications and taking people’s money. The applicant indicated he agreed and regretted what had happened and could understand what the Tribunal was saying.
The Tribunal expressed its concerns that the applicant had been given false information about the process. The applicant responded that he went looking for the person who completed his application but could not find him.
The Tribunal went through the written responses with the applicant.
The Tribunal read the written response to question 89 (Why did you leave that country?) that stated, ‘I AM LEAVING THE COUNTRY BECAUSE THE DEMOCRATIC SYSTEM PRACTICED HAS RUINED MY COUNTRY UNDER LEADERSHIP DATO SERI NAJIB TUN RAZAK SUMMARY NO LONGER TO GET PEOPLE AND HAVE MANY INVESTOR AND SHUT OUT OF THEM, RESULT OF THE MALAYSIA PUBLIC WORK THAT HAVE TO BE REMOVED UNEMPLOYED’. The applicant responded that his English wasn’t very good and he could have written it better himself. The Tribunal agreed that the applicant could have written the claims himself better – if he had in fact written his own claims. The Tribunal asked if there was anything else he wanted to say, to which he responded that some bits of what he (the other person) wrote down was true, being the concerns about the country’s leadership and the economy, but the rest was not correct.
The Tribunal read the written response to question 90 (What do you think will happen to you if you return to that country?) that stated, ‘TO CONTINUE LIVING THE MOST PRESSING THEM HAD TO BORROW MONEY FROM FINANCIAL COMPANIES ARE NOT LICENSED’. The Tribunal indicated that it had no idea what that statement meant. The applicant responded that he didn’t think he would end up borrowing from a loan shark. He might end up borrowing from friends to help re-establish himself, but he was definitely convinced that he would not earn as much back in Malaysia than he would here (in Australia).
The Tribunal read the written response to question 91 (Did you experience harm in that country?) that stated, ‘Yes. AMONG THEM INCLUDING ME CAN NOT PAID MORE DEBT INCREASED’. The Tribunal indicated that it was hard to understand the response to the questions. The Tribunal noted that the applicant had already indicated he had not experienced harm in Malaysia. He said, not harm that he would be killed, but harm in the economic sense in that he has his study loan to repay. The Tribunal asked the applicant what he thought harm meant, to which he indicated that there are many forms of harm, mental and physical, and should the economy worsen he could suffer depression and mental problems. The Tribunal indicated that the question was written in such a way as to ask whether the applicant themselves experienced harm.
The Tribunal read the written response to question 92 (Did you seek help within the country(s) after the harm?) that stated, ‘No. MALAYSIA IS AMONG THE HIGHEST DEBT WITH WOLD BANK’. The applicant responded that the statement meant to him that if he went through difficulties here (in Australia) there are organisations for asylum seekers who can help him out; in Malaysia there may also be such organisations, but not many.
The Tribunal read the written response to question 93 (Did you move, or try to move, to another part of that country(s) to seek safety?) that stated, ‘No. MORE POOR COUNTRIES BUT INCREASED MORE CORRUPTION’. The applicant responded that he did not quite understand himself what was written, but perhaps he can interpret what was written down to say that if he moved from Melaka to Selangor he still would not be able to survive.
The Tribunal then put to the applicant that the Tribunal was aware that the claims the applicant had made have previously been made by other applicants – word for word, spelling mistake for spelling mistake, terrible English for terrible English. In response, the applicant expressed dismay. The Tribunal indicated that that was what $[amount] got him, to which the applicant responded that he could have used that on food. The Tribunal asked the applicant if he thought that he was the only person that paid $[amount] for claims that may have been used again. The applicant indicated he did not know.
The applicant indicated at hearing that, no matter what, he faced economic hardship if he returned to Malaysia – that’s what he wanted to say.
The Tribunal thanked the applicant for answering the Tribunal’s questions openly.
The Tribunal noted its concern that there appeared to be individuals out there making money off applicants and misleading them as to what the correct processes are, and then making money as a result of that. The Tribunal indicated its hope that those who were in the Malaysian community in a similar situation to the applicant become aware that when using these services, under the assumption they are getting proper assistance, that they are being misled and exploited.
The applicant indicated that if he was required to return to Malaysia he would try to make other Malaysians aware through his blog that if they wish to come to this country, they should do it in the proper manner, such as applying for a student visa, which may be more difficult for them, but may also have benefits for them. The applicant indicated he realised this was probably his final year here, and that while his visa might be refused, he was hoping to stay until then end of the year and enjoy himself over here.

The Tribunal called a close to the hearing.
It is noted that after the hearing the Tribunal wrote to the applicant on 27 March 2018 in accordance with s.424A of the Act, and stated:
During the hearing you attended at the Tribunal on 15 March 2018, the member put to you that the claims you provided in your answers to questions 89 to 96 of the form 866C were identical to claims that have been made previously by other applicants.
The member advised you that they had been made aware that your claims have been made by other applicants previously on separate occasions, with the same spelling mistakes, word for word. You indicated that you paid $[amount] to have another person write your claims and you indicated that the claims were not your own.
If we rely on this information in making our decision, we may find that your claims are not credible and may affirm the decision under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by Friday 13 April 2018.
On 13 April 2018, the applicant responded to the Tribunal and stated:
First of all, I would like to introduce myself. My full name is [name] and I’m [age] Y/O this year. As I can speak to represent myself, I had some financial issues back when I’m at Malaysia due to my family is not really had a stable income.
I first came here [in] August 2016, with only [amount]$ in my pocket and that’s the only money I’ve got to continue on living here. I have used all my saving to come here in order to seek for a better opportunity. At first I was planning to go on with a student visas but it was a bit of expensive and I have got no choice but to used protection visa 866 class. But at that time, I was not aware of the extend of that visas and to shortened things up. I end up using the visa.
Back at Malaysia, I had a brother who were still studying and in need of money to continue his studies, my parents who needs money to struggle with the harsh economic situation at Malaysia. As their son and brother, I don’t want to see them had a hard time there and wishes to support them with all I’ve got here. I also had this studies loan that I have to pay back which is in total of RM[amount] ($[amount]AUD).
Back at Malaysia, I had hard time to find a good job there. There is a good job, but mostly it is fully occupied with a better qualification candidate with good experiences. In Malaysia, most of the job required us to have at least 1 year experiences. It is almost impossible for me to had a hold of a good job because I had not relevant experiences on that field. Furthermore, I had lost my job before I came here to Australia due to some error that I have made.
I know that I shouldn’t have got into this whole visa situation where I can choose the wiser way to stay here which is the student visa, but not all of us were in a good situation where we can afford to had the student visa where we had to pay certain amount of money each month. Yes, it was a not necessary choice to choose this visa, but I just hope not more of us (Malaysian) will involve in this kind of situation where they are being scam or tricked by people who wants to take good easy money from them.
And I was planning to do some studies and research about this visa and those people uses this to trick other people to make them feel like this is the better way to stay here. Put it on social media in order to create more awareness. I just feel that I was given a chance to stay until the end of this year in order to contribute to my family and hopefully be able to enjoy this country beautiful scenery and nature. Well, it’s at least I can do to the society from other place by promoting them a good place to travel.
I hope I had put a good convince in order for me to stay until the end of the year and had the chance to do good. Thank you.
ASSESSMENT OF CLAIMS AND FINDINGS
Identity
The applicant’s claimed identity is [name] born on [date] in Malaysia. The applicant claims to be a citizen of Malaysia.
On departmental file [is] a certified copy of the applicant’s passport (issued [in] 2015, passport number [number]).
I have taken into account the certified copy of the applicant’s passport. There is no information to suggest that the applicant has provided false information in relation to their identity. The Tribunal finds that the applicant is [name] born [on date] in Malaysia, and is a citizen of Malaysia.
Receiving country
The Tribunal has found that the applicant is a citizen of Malaysia and accordingly the Tribunal finds that Malaysia is their receiving country.
Protection in another country
The applicant has indicated that they do not have a current right to enter and reside in a country other than Malaysia. There is no information to suggest that the applicant has a right to enter and reside in another country other than Malaysia. The Tribunal finds that the applicant does not have a current right to enter and reside in a country other than Malaysia and, accordingly, the Tribunal finds that s.36(3) of the Act does not apply to the applicant.
Applicant’s claims
It is apparent that the applicant’s written claims are not credible. The applicant has readily admitted he did not write his claims and that the written claims do not accurately reflect his circumstances. The written claims have been made by other applicants previously, and are simply a cut and paste of identical claims that have been used more than once by other applicants. It was clear during the hearing that the applicant was not aware of what the written claims actually said, and was not assisted by the fact that he signed blank application forms and got someone else to complete the claims. Accordingly, the Tribunal does not accept the written claims as detailed in responses to questions 89 to 96 of both of his written applications dated 26 September 2016 and 28 November 2016.
The only claim made at hearing by the applicant was that he would face economic hardship if he returned to Malaysia, specifically that he would earn less in Malaysia than he is currently earning in Australia. The applicant re-affirmed his claim of economic hardship in his written response dated 13 April 2018. The Tribunal notes that he indicated that back in Malaysia he had a brother who was still studying and in need of money to continue his studies, and his parents who needed money to struggle with the harsh economic situation in Malaysia. The applicant claimed that he did not want to see his family members have a hard time and that he wished to support them, and that he also had a study loan of RM[amount] ($[amount]AUD) that he had yet to pay back. However, the Tribunal notes during the hearing the applicant initially indicated that he was working in Australia to support his family back in Malaysia, but his story changed such that he made admissions that his family did not solely rely on him supporting them. In light of the other credibility concerns, the Tribunal does not accept that the applicant is providing financial support to his family members.
The Tribunal notes that during the hearing, the applicant indicated he had a student loan to repay, but that the applicant indicated he viewed having to repay his study loan as amounting to harm. The Tribunal does not accept that having to repay a study loan amounts to harm.
The Tribunal notes that in his written response dated 13 April 2018, the applicant indicated that in Malaysia it is hard to find a good job. The applicant acknowledged there are good jobs in Malaysia but that to get those jobs a person needs job experience, which he does not have. The applicant indicated that he lost his job, not due to any poor economic factors but due to his own apparent lack of performance in his previous job. The Tribunal holds the view that such circumstances can exist anywhere in the world, and they are not limited to Malaysia. The Tribunal also notes that despite losing a job, the applicant had found himself another job (being self-employed) in the time prior to coming to Australia. The applicant has [an] education and a [diploma]. The Tribunal notes s.5K(5)(d) where serious harm is ‘significant economic hardship that threatens the person’s capacity to subsist’. The Tribunal has had regard to the country information in the DFAT report for Malaysia dated 19 April 2018. However, the Tribunal does not accept the applicant’s claim of economic hardship in Malaysia to be credible. The Tribunal does not accept that he has been subject to significant economic hardship in Malaysia that threatened his capacity to subsist, or that there is a real chance that he will be subject to significant economic hardship that threatens his capacity to subsist if he returns to Malaysia in the foreseeable future.
Refugee criterion assessment – s.36(2)(a)
The Tribunal considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.
For the reasons given above, the Tribunal finds that:
a.it is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b.it is not satisfied that there is a real chance that, if the applicant is returned to Malaysia, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c.it is not satisfied there is a real chance of persecution that relates to all areas of Malaysia;
d.it is not satisfied that the applicant has a well-founded fear of persecution;
e.it is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act;
f.the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.
Complementary protection criterion assessment – s.36(2)(aa)
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has 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 the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
The Tribunal is aware of the importance of adopting a reasonable approach in that the decision maker is not required to make the applicant's case for him or her. Nor is Tribunal required to accept uncritically any and all the allegations made by an applicant.
As indicated above, the Tribunal does not accept the applicant’s written claims or oral claims at hearing, including his claim that he would suffer significant economic hardship that threatens his capacity to subsist if he returns to Malaysia in the foreseeable future.
The Tribunal finds that the above considerations strongly indicate there is no basis for any claim that there is any real risk that the applicant would suffer significant harm if he returned to Malaysia.
For the reasons set out above, the Tribunal finds that it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including that the applicant will suffer harm by way of being arbitrarily deprived of their life; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.
Conclusions
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 Convention. Therefore the applicant does not satisfy the criterion set out in 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 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 3358

19 July 2018

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