1727623 (Refugee)

1727623 (Refugee) [2023] AATA 4584 (28 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1727623

COUNTRY OF REFERENCE: Malaysia
MEMBER:Samira Kamandi
DATE:28 November 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 November 2023 at 10:19am
CATCHWORDS
REFUGEE – protection visa – Malaysia – small business operators – economic conditions – employment – harassment from debt collectors – children will suffer educational disadvantage – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicants are [name] (the applicant) and her son, [name] (the applicant’s son). The applicant was born in [specified year] in Selangor, Malaysia. The applicant’s son was born in [year] in Kuala Lumpur. They claim to be citizens of Malaysia and of Malay ethnicity and Muslim religion. The applicants travelled to Australia [in] May 2017 on UD-601 Electronic Travel Authority visas. The applicant applied for a protection visa, which included her son, on 14 July 2017.
The applicants’ application for protection visas was refused on 30 October 2017. The applicants applied for review of that decision on 9 November 2017.
At the hearing, the applicant confirmed that her husband arrived in Australia in December 2016, about five months prior to her and her son’s arrival in Australia [in] May 2017. The applicant stated that her husband had also made an application for protection which was refused and that his matter is currently before the court for judicial review. The applicant stated that her husband’s claims were political and did not raise any claims to fear harm based on her husband’s claims for protection, which were not found to give rise to engaging Australia’s protection obligations.
The applicant resides with her husband and children in Australia. Since her and her first son’s arrival in Australia, the applicant and her husband have had [further] children. The applicant’s Australian born children are not included in the applicant’s protection visa application and are not the subject of this review.
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). 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–5LA, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection visa application
In the protection visa application, the applicant claimed that she departed Malaysia for economic reasons, that there were no jobs and that she could not support herself and her family. The applicant claimed that she had applied for many jobs but failed to secure employment due to Malaysia’s “bad” economy. The information relating to the applicant’s son indicates that he followed his mother to Australia. The applicant attached copies of her Malaysian Identity Card and her and her son’s Malaysian passports to their combined protection visa application.
The delegate’s decision
The applicants were not interviewed by the Department in relation to their claims. While the delegate accepted that the applicant strongly prefers to live in Australia where she would experience a better quality of life and have access to greater employment opportunities, the delegate found that this did not constitute persecution for a Convention reason. The delegate was not satisfied that the applicants faced a real chance of serious harm or were at real risk of significant harm due to the economic situation in Malaysia and refused their application on 30 October 2017.
Review application
The applicants lodged a review application with the Tribunal on 9 November 2017. The applicant provided the Tribunal with a copy of the delegate’s decision.
On 26 August 2023, the Tribunal sent the applicant an email requesting her current contact details, information relating to her family members in Australia, and any further information or evidence relating to her claims for protection.
On 28 August 2023, the applicant responded to the Tribunal’s request, providing a statement and various other documents, including social media screenshots. The applicant also identified her husband and children as members of her family residing in Australia.
In her statement the applicant claims that in 2007, she started a business selling [products 1]. She states that initially she started the business on a small scale, where the goods were produced manually. As the business grew and due to high demand for her products, she required machines to increase production. The applicant claims that she obtained a business loan from a Malaysian government agency, “[Agency 1]”, for the amount of “MYR[amount]”. The applicant states that initially it was all fine, until the prices for raw materials and rent went up, resulting in high overheads. Additionally, the applicant claims that she was scammed with fraudulent orders which cost her business a total of “MYR[amount]” and made the situation worse.
The applicant claims that despite the rising costs, she tried to maintain the business for three years. However, production in the factory came to an end when she was unable to pay the factory rent, and the business was not making sufficient rolling capital to cover monthly overheads. She also defaulted on her loan repayment and because of these factors, had no choice but to downsize her business by shifting production to her house, and borrowing a further amount of “MYR[amount]” from a commercial bank with interest. She claims that she continued to sell her products through small street market concepts in Kuala Lumpur, which were located on government-owned land. The applicant claims that despite the venues being in ideal positions, due to weekly demonstrations organised by NGOs against the ruling government, many roads were closed, and people were unable to reach the venues, resulting in a decrease in the number of sales. The applicant states that less than a year later, all vendors were notified to vacate the place due to the land having been acquired by a corporate entity for a commercial project. The vendors tried to fight for their rights but were unsuccessful.
The applicant claims that due to defaulting on her loans, she received “endless” calls from debt collectors harassing her to make payments. She was threatened which caused her to develop anxiety and become fearful of “unknown calls”. The applicant states that debt collectors started to come to her house causing havoc and embarrassment. Her name was blacklisted which meant that she would never be able to buy a house or property. The amount of the loan was getting bigger due to high interest rates and as a result she suffered mental breakdown. The applicant claims that her personal economic stability “plus other issues” were the main reasons she applied for protection, seeking a fresh start.
In addition, the applicant states that she is a mother of [number] children, [an age]-year-old born in Malaysia, and [ages of other children] born in Australia. She claims that her children have adapted well to the environment and education system and are progressing well. The applicant believes that they will face difficulties if they study in Malaysia. The education system in Malaysia is totally different and changes whenever there is a change in leadership. Students are used as guinea pigs of the system, and the language used during school hours is mainly Bahasa Malaysian. The applicant claims that she is aware of the situation due to information on social media and news and that she has verified this with close friends in Malaysia. The applicant refers to “unresolved issues” with the Malaysian education system, including heavy school bags, “way too hard” syllabus for students to digest, 35 to 40 students in one class, too many subjects for students to learn, and little time to study school subjects especially mathematics. The applicant submits that despite parents raising these issues with the authorities, the issues have been swept under the carpet and that there was a case of a teacher having been demoted for raising concerns.
The applicant submits that her children will be lost in translation if they were to attend a government school in Malaysia. They may become stressed due to poor understanding of the language and bullied and alienated due to language barriers. She states that she has a friend who had no choice but to send her son to a private school because her son barely spoke Bahasa Malaysian and could not stand being bullied. For students to obtain an “O level” certificate in Malaysia, he/she is required to pass a “Bahasa Malaysia paper”. Her children can only converse in English which has become their primary language in speaking, writing and reading. Sending them to a private school is not an option as the fees for private school will be nearly MYR150,000 (equivalent to AUD50,000) through their academic journey. The applicant submits that her children deserve to get a good education like they are getting in Australia.
The applicant provided the following supporting evidence:
·An untranslated letter from [Authority 1] of Malaysia, which appears to be dated [in] February 2008.
·A copy of a bank statement showing transactions between 2010 and 2011.
·An untranslated document referred to as an invoice.
·An email which appears to have been addressed to the applicant from “PTPTN Notification”.
·A letter from a teacher from [School 1] dated 25 August 2023.
·A support letter from a friend from New York dated 24 August 2023.
·Untranslated copies of screenshots of Facebook posts relating to the applicant’s business in Malaysia.
·A copy of a news article published in “TRP” Malaysia on 18 October 2022.
·Information relating to the school syllabus in Malaysia, including photos of schoolbooks and student workbooks and parents’ opinions and concerns about the level of difficulty of the material.
The applicant was invited to attend a hearing on 16 November 2023. In her response to the hearing invitation, the applicant indicated that she required an interpreter in the Malay language and requested the Tribunal to take oral evidence from her husband and her mother. She also provided the Tribunal with statements from her husband, mother, two friends and an English language teacher in Malaysia.
The hearing was held in person at the Tribunal’s Perth Registry. The applicant was not represented. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant and the interpreter confirmed that they understood each other, and no issues were raised about the interpretation services provided by the interpreter.
The applicant was very emotional throughout the hearing and was given regular breaks to compose herself. The applicant was able to engage with the process and provided responses to all questions asked. She was also given several opportunities to raise any further issues or matters that were not discussed and she wished to be considered as part of the assessment of her and her son’s claims for protection. I am satisfied that the applicant was able to fully participate in the hearing and was given a meaningful opportunity to discuss her claims and evidence.
At the hearing, the applicant confirmed that her husband’s statement contained all the evidence that she wished to be considered and that there was no need for her husband to give oral evidence. I have considered all statements, including the applicant’s husband’s statement, provided in support of the applicants’ review. The applicant wished for the Tribunal to contact her mother in Malaysia to give evidence. The Tribunal contacted the applicant’s mother who gave evidence in support of the applicants’ protection visa application and the applicant was given an opportunity to ask her mother any further questions she wished to ask, which she declined, confirming that she had no further questions and that her mother gave the evidence that the applicant wants to be considered.
The applicant’s evidence given at the hearing, her mother’s evidence and evidence in the supporting statement provided by the applicant are discussed below.
The issue in this case is whether there is a real chance that the applicants will suffer serious harm if returned to Malaysia for reasons of their race, religion, nationality, membership of a particular social group or political opinion. Alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia there is a real risk that they will suffer significant harm.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
FINDINGS AND REASONS
Applicants’ identity and country of reference
The applicants have consistently claimed to be nationals of Malaysia. The applicant provided copies of her and her son’s Malaysian passports and a copy of her Malaysian Identity Card supporting their identity and nationality. I find that the applicants are nationals of Malaysia, and that Malaysia is the receiving country for the purposes of this assessment.
Background information
At the hearing, the applicant confirmed that she was born in [specified year], in Selangor, Malaysia. She confirmed that she is of Malay ethnicity and a practising Muslim. The applicant’s evidence is that she married her husband in 2010 in Malaysia. They had their first child in Malaysia in [year]. Her husband departed Malaysia for Australia in December 2016. The applicant and her firstborn son stayed at her parents’ house and departed Malaysia [in] May 2017 to join her husband. After their arrival, the applicant and her husband had [further] children born in [specified years].
Regarding her parents and siblings, at the hearing, the applicant stated that her parents and siblings remain in Kuala Lumpur in Malaysia. Her mother who was [an occupation 1] retired in 2019. Her father worked at market stalls, but no longer works. Her siblings are all married, a sister is a stay-at-home mother, and the [other family members] work for themselves. Regarding her husband’s family, the applicant stated that her husband had [specified family members] and that his family were from Kelantan. The applicant stated that her husband’s parents and [number] siblings reside in Kelantan. Her husband moved from his family village in Kelantan when he was 18 years old and did not return to his village to reside.
Regarding her residential history, the applicant stated that she lived in Ipoh and that when she was about 12 years of age, her parents moved to Kuala Lumpur and she resided with her parents. Apart from a period residing in Ipoh, when the applicant and her husband had a factory and were making [products 1] for their business, the applicant confirmed that she primarily resided in Kuala Lumpur.
Regarding her education in Malaysia, the applicant stated that she finished high school in [year] and that she commenced a bachelor’s degree in [subject 1] at [a named] University in [year]. She continued the course for a period of two and a half years but did not complete the last two semesters as she wanted to enrol at a different institution where a course in making [specialty products 1] was offered. The applicant stated that in [year], she tried to enrol in that course, but the course was discontinued because there was not enough interest from others for the course to continue.
At the hearing, the applicant stated she had an interest in Arts and as she was unable to enrol in the course she had an interest in, she started using Google and talking to others, and learnt how to make [products 1]. She claims that in that period, she met her husband who had a similar interest and together they learnt to make [one type of products 1]. The applicant stated that her father knew a friend who knew how to make [this type of products 1] and that the applicant and her husband learnt to make [range of products 1]. The applicant’s evidence is that she and her husband built the business together and that they worked in this business until it was closed in 2015.
At the hearing, the applicant was referred to her protection visa application which indicates that she worked in [a business 1] in Kuala Lumpur from January 2015 until December 2016, with no mention of the applicant having operated a business in Malaysia. The applicant was given a copy of her protection visa application to review. She denied having worked in a [business 1] and confirmed that the information in her protection visa application was not correct.

The applicant was asked whether she was assisted in filling out her protection visa application. She said that a person, introduced by a friend, filled out her application form. When asked if she paid this person, the applicant stated that as she was a good cook, she gave the person some food. The applicant stated that she told the person that she left Malaysia because of the economy and bank loans. When asked if she read the protection visa application before signing it, the applicant stated that she read it in passing and that she did not fully understand what was in the application. The applicant stated that the person filling out the form told her that what was put in the application was not important as along as she had a visa. The applicant was informed that the protection visa did not include any information about bank loans and only refers to her inability to find employment. She indicated that she had advised the person assisting her that she had bank loans and that she trusted him. When referred to the information in her protection visa application that she had applied for many jobs but failed to obtain employment because of “economy issues in Malaysia”, the applicant stated that she had not applied for any jobs nor worked after the closure of her business in 2015.
I accept that the applicant was assisted in completing her protection visa application and that the application includes information that is incorrect. Given that the applicant is educated, in that she almost completed a bachelor’s degree in [subject 1] and operated a business for several years, I have concerns that she signed her protection visa application without reading it in full and confirming that the information within it was accurate. Despite my concern in this regard, I am willing to accept that the applicant was advised that the information in the application was not important as long as she had a visa to stay in Australia, and that she signed the application without verifying all the information.
Having obtained the information regarding the applicant’s family background and educational and employment history at the hearing, which she presented in a forthcoming manner, I accept her evidence about her family, her education and employment, as set out above.
Business loans in Malaysia
As set out above, in August 2023, the applicant provided the Tribunal with a statement and supporting evidence, claiming that her and her husband commenced and operated a [products 1] business in Malaysia, which was closed in 2015. In the course of operating their business, the applicant claims that they borrowed money from a government organisation and a bank, and that because of increases in overhead costs, downturn in profits and being scammed, they were unable to service the loans and continue with their business and had to close the business in 2015.
At the hearing the applicant stated that after starting the business with her husband, their first clients were family and friends. They also tried to sell their products in pop-up markets in Kuala Lumpur on the weekends. As there was only the two of them, they could not produce large quantities of their product. In order to expand their business, they approached [Agency 1], a government organisation, for a loan. [Agency 1] did not provide them with any money but purchased the machines for them. The applicant stated that as her and her husband were ignorant at the time, [Agency 1] charged them [amount] ringgits for machines which they discovered later were only worth [much less]. The applicant stated that in 2007, she managed to rent a factory in Ipoh and that in 2008, they were able to register their business. At the hearing the applicant confirmed that the untranslated document from the [Authority 1] of Malaysia, is the document relating to the registration of their business in 2008. The applicant also stated that from 2008 to 2010, prior to the applicant’s marriage to her husband, they operated their business making [products 1] at their factory in Ipoh.
The applicant was questioned about the loans she took out in order to operate her business, her claim that they were scammed of [amount] ringgits, and what steps she took towards repaying loans and obtaining assistance to manage the situation. The applicant stated that in 2010, a friend of her husband’s took [amount] ringgits worth of goods to sell but only paid them [much smaller amount] ringgits for the goods. This impacted their financial situation and they had to close the factory in Ipoh and move to Kuala Lumpur, where they continued to sell their products at markets. They advertised on social media and only produced products based on orders they received. When asked if the reference in her statement to the Tribunal that she was scammed related to the friend who did not pay them the entire worth of the products he took, the applicant responded in the positive and confirmed that the friend was a close friend of her husband’s and that after he paid them the [smaller amount] ringgits, he did not pay any further money and disappeared. She stated that as the friend was unreachable, they were unable to regain their money and that this impacted their business and finances. The applicant became very emotional and stated that they had trusted this friend and that he took their products and did not pay. As a result, they were not able to make payments towards their loan with [Agency 1] and had to close the factory and return to Kuala Lumpur to reside with her parents. The applicant provided a statement said to be from [Agency 1], showing that in December 2006, she still owed [Agency 1] an amount of about [amount] ringgits. When asked if she had made any further payments towards the loan, the applicant stated that she had, but still owed an amount of [amount] ringgits to [Agency 1]. When asked if [Agency 1] had contacted her to recoup the money, the applicant responded in the negative and confirmed that she was never contacted by [Agency 1] about this loan.
The applicant claimed that due to their financial circumstances, they borrowed a further [amount] ringgits from [Bank 1]. The applicant provided the Tribunal with a bank statement from [Bank 1], which supports her claim that she borrowed an [amount] ringgits in January 2011. When asked what she did with this money, the applicant stated that they used part of the money to pay part of their [Agency 1] loan, and the rest to set themselves up, including hiring a site to sell their products and purchasing shelves and other equipment to set up the stall at a market in Kuala Lumpur. At the hearing the applicant stated that they also started selling their products online and that her friend also had an online business which cross-promoted their products. Regarding repayments towards their loans, the applicant stated that they made five payments of [amount] ringgits towards the [Bank 1] loan and that they still owed [amount] ringgits to [Bank 1].
As outlined in her statement to the Tribunal, the applicant referred to having lost the site where they sold their products due to demonstrations in the area and that they had to leave the premises. This impacted their ability to keep up with repaying the loans and that the bank engaged debt collectors to demand repayment of the loan. The applicant stated that between 2013 and 2016, she was harassed and as a result suffered a miscarriage. When asked if she made any attempts to renegotiate repayment amounts with the bank, the applicant stated that she tried but they did not want to hear about it and did not agree to reducing the repayments. When asked if she had any recent bank statements to show the amount owing, the applicant responded in the negative. The applicant also referred to her mother being a guarantor for the loan and that the debt collectors would go to her mother’s [workplace], where she worked as [an occupation 1], and ask for the money. The applicant also referred to the debt collectors saying that they had an arrest warrant. When asked what her mother did when the debt collectors visited her [workplace], the applicant claimed that she would pay them whatever money she had to get them to go away. When asked how much she would pay them, the applicant said 50 ringgits or whatever she had on her and that they would go away. She further stated that although they said that they were from the bank they were behaving like gangsters. When asked if she borrowed any money from loan sharks or gangs, she stated that she was tempted to, but refrained from doing so. The applicant confirmed that she only borrowed money from [Bank 1] and [Agency 1] and had to close the business entirely in 2015.
When asked if the debt collectors continued their harassment, the applicant confirmed that they had and that it was only her mother in Malaysia who was harassed. The applicant also stated that in 2019, her mother moved houses and as they do not know her new address, they continued to call her. When asked what they told her mother, the applicant referred to her miscarriage, and that they threatened to make pamphlets with her photograph saying that she did not pay her debts and that they would place them in people’s letterboxes. When asked if they contacted the police or a community organisation or group for assistance, the applicant stated that they did not.
The applicant provided the Tribunal with a statement from her mother and requested the Tribunal to contact her mother in Malaysia to give evidence. The applicant’s mother’s unsigned and undated statement indicates that the applicant left Malaysia due to economic hardship and corroborates the applicant’s evidence that she operated a business and took out loans from commercial entities. The statement also indicates that the applicant’s business did not do well and had to be abandoned, that the applicant was not able to service the loans, and that she was harassed by debt collectors who made calls, home visits and veiled threats. I also note that the statement from the applicant’s husband indicates that the applicant and her husband operated a business, had bank loans, which they were unable to repay due to the difficulties they faced operating their business, and that they started receiving calls and notices from debt collectors due to defaulting on repayments.
At the hearing, when asked if she was a guarantor for the applicant’s loan, the applicant’s mother stated that she was not a guarantor but referred her daughter to the bank and as such the bank had her details. When asked about the reference in her statement about harassment from debt collectors, the applicant’s mother stated that the debt collectors, who were a third party engaged by the bank, initially started harassing the applicant. In around 2015, they started coming to the [workplace] where the applicant’s mother worked and would cause embarrassment. The applicant’s mother stated that she was told that they had an arrest warrant to scare her. The applicant’s mother stated that the stress of the situation caused the applicant to suffer a miscarriage and that she also had to increase her blood pressure medication. When asked if she contacted the police, the applicant’s mother said that she told them that she would call the police. When asked when the harassment stopped, the applicant’s mother stated that in 2019 she moved from her home and that “they” were unable to locate her, but that they still called her, and she told them that it was the wrong number and that her daughter was no longer in Malaysia. When asked about what she meant in her statement when saying that her daughter was blacklisted and entered Australia in search of a better life, the applicant’s mother stated that they could not get any other loans and that the applicant’s failure to repay the bank resulted in damage to the applicant’s credit rating.
Considering the applicant’s evidence provided to the Tribunal prior to and during the hearing, and supporting evidence, including statements from her husband and mother, I accept that the applicant and her husband operated a business producing and selling [products 1] in Malaysia. I accept that they started the business years prior to their marriage in 2010, that they borrowed funds from [Agency 1] in 2006 to purchase machinery, that they hired a factory in 2007 in Ipoh where they made the items, and that in 2010 they were scammed and lost money which impacted their ability to continue renting the factory and making repayments to [Agency 1]. I accept that they went to Kuala Lumpur and resided with the applicant’s parents. I accept that the applicant and her husband borrowed money from [Bank 1] and used that money to repay some of the [Agency 1] loan and used the rest to hire a site for the business and purchased equipment to set up a stall at the markets in Kuala Lumpur. I accept that they continued this set-up and made some repayments towards the [Bank 1] loan. I accept that they had to give up their site for the stall at the market and that they started selling their products on social media and that due to the downturn in their profits, they started to default on their loan repayments. The applicant claims, and I accept, that she received calls from the bank and notices of default and that this caused her a lot of distress. The applicant claims that she suffered a miscarriage as a result of the distress. Her mother also referred to the applicant having suffered a miscarriage. While I am willing to accept that the applicant did suffer a miscarriage in Malaysia, given my findings below, I am not convinced that the miscarriage was as a result of the harassment she faced from debt collectors. I accept that the applicant and her husband felt that they had no other option but to close their business, which they did in 2015.
At the hearing, the applicant’s evidence was that her husband left Malaysia in December 2016. When asked about whether her husband was working in Australia, the applicant stated that he was working at a [factory] and that prior to this job, he worked with [Employer 1] and as an [occupation 2]. While initially, the applicant stated that she did not work in Australia, later during the hearing, the applicant stated that she was [selling products 2]. I also note the applicant’s mother’s statement which indicates that the applicant supplements her family’s income by selling [items including products 2], such as [examples]. When asked if she had made any repayments towards the loan, the applicant responded in the negative. When asked, given that her husband has been working in Australia and they have been residing in Australia for over six years and her claim that she fears harm from the debt collectors, why they have not made any attempts to repay the loan, the applicant stated that they are trying to set themselves up in Australia and that she fully intended to repay the loan. When asked if she had any recent bank statements showing the amount owing to the bank, she first referred to these being “on her phone” and then stated that she was selling [products 2] in Malaysia, has saved 2,000 ringgits in a bank account in Malaysia, and that once she saves enough, she would repay the loan. As discussed with the applicant at the hearing, that she and her husband have been residing in Australia, engaged in employment, but made no attempts to settle the loan with the bank, indicates that she does not have a genuine fear of further harm or harassment from the bank.
During the discussions around the applicant’s failure to seek assistance from the police or other organisations, given that she claims that she was facing continued distress and harassment and threats, the applicant stated that she heard about a lot of people who had borrowed money from loan sharks. When informed that she had confirmed that she had borrowed from a bank not a loan shark, the applicant referred to the debt collectors behaving like loan sharks. When the applicant was advised that even with victims of loan sharks, country information[1] indicates that the police and other organisations, such as the Malaysian Muslim Consumers’ Association, offer support for those encountering problems with loan sharks, including a call centre, website and assistance settling debts, the applicant stated that she went to an organisation, but they did not assist her and told her that she did not qualify for their assistance. When referred to her earlier evidence that she did not seek any assistance from the police or other organisations, the applicant stated that she had on one occasion which she forgot to mention. I do not accept that the applicant sought or was refused assistance from any organisation.
[1] Department of Foreign Affairs and Trade, “DFAT Country Information Report Malaysia”, 29 June 2021, 20210629092134.
While I have no doubt that upon defaulting on payments, the applicant and her husband received phone calls and letters of demand to repay the loan and I consider it plausible that the bank may have hired debt collectors to recover the money owing, and that debt collectors may have visited the applicant’s home and her mother’s place of employment, I am not convinced that the applicant was threatened by debt collectors that they would produce and distribute pamphlets with the applicant’s photograph and claimed that they had an arrest warrant. Apart from the applicant and her mother’s assertions, the applicant has not provided any independent evidence that commercial banks in Malaysia resort to these types of intimidation and threats, and the information before me also does not support these assertions.
In addition, the applicant’s evidence is that she started to default on repayments of the loan several years prior to her departure and there is no indication that any of the claimed threats eventuated. The applicant’s evidence at the hearing is that she was harassed between 2013 and 2016, during which she continued to reside at the same address and there is no indication that the debt collectors resorted to involving the police to arrest her or produced pamphlets to advertise that the applicant, or her husband were not paying their debts. Further, the applicant’s mother continued to work at the [worksite] and resided in the same address known to the debt collectors until 2019, several years after the applicant’s departure, and there is no indication that she was harmed. The applicant also confirmed that no other members of her family have ever been approached or harassed by any person or debt collectors. I consider that if the debt collectors were behaving like gangsters or had any intention to harm the applicant or her family, they would have had many opportunities to do so in the several years that the applicant and her husband remained in Kuala Lumpur prior to their departure for Australia.
In light of the above, in particular the applicant’s failure to seek assistance while in Malaysia, causes me to doubt the nature, level and frequency of harassment she claims she encountered while in Malaysia. Her evidence that she has not settled the loan in the decade after borrowing the money in 2011, during which she and her husband have resided and generated an income in Australia, casts further doubt over the credibility of her claim that she departed Malaysia due to fear of being harmed by debt collectors who acted like gangsters. Overall, while I accept that the applicant and her husband defaulted on their loan repayments and debt collectors contacted them demanding the money owed to the bank, and that the applicant was distressed during that period, I am of the view that the applicant has exaggerated the level and nature of the debt collectors’ engagement with her to elevate her claims for protection.
In any event, as discussed with the applicant at the hearing, banks and creditors are entitled to enforce their rights against borrowers for repayment of any money owing to them and borrowers have an obligation to make repayments with interest. Having to repay loans borrowed from commercial banks or an inability to borrow money due to a bad credit rating, does not engage Australia’s protection obligations. I also note the applicant’s evidence at the hearing, that she fully intends to repay the loan and has already taken steps to save money with the intention to repay the bank, which further removes the risk of the applicant facing harassment, in the form of being called or approached by debt collectors acting on behalf of the bank.

Overall, I am not satisfied that the applicants face a real chance of any harm amounting to serious harm from the bank, debt collectors or any other person due to defaulting on repayments of a loan of funds borrowed over a decade ago. I am also not satisfied that any actions taken against her by the bank will be directed at her for any reasons specified in s 5J(1) of the Act.
Economy/inability to financially support herself and her family
The 2021 DFAT report[2] indicates that the World Bank classified Malaysia as an upper-middle-income, export-oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approximately AUD15,000). According to the World Bank, following the Asian financial crisis of 1997–98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. In 2020 Malaysia’s economy was hit with the dual shock of COVID-19 and decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. DFAT reported that the economy was expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. It is also reported that the Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.
[2] DFAT, “DFAT Country Information Report Malaysia”, 29 June 2021, 20210629092134.
It is reported that while Malaysia’s progression from an upper-middle-income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028, this may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.
Overall, DFAT reports that Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states.
Regarding labour force and the unemployment rate in Malaysia, DFAT reports that 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 per cent 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.
At the hearing, the applicant referred to being [age] years of age and not knowing how to support herself if returned to Malaysia. She also stated that if returned to Malaysia, her family could not live in Kuala Lumpur due to the high cost of living and that they would have to return to her husband’s village in Kelantan. The applicant’s evidence at the hearing was that her husband resided in Kelantan, where he went to school and worked part time selling CDs and left the area when he was 18 years old. The applicant stated that her husband’s parents and [family members] reside in their village, and that they pick up odd jobs to support themselves. She further stated that people from this area speak in a different Malay dialect, which she does not understand. She further stated that fundamentalist Muslims reside in the area requiring women to wear the hijab and that there is segregation between the genders. When asked if her husband ever returned to the area, the applicant stated that he only returned during Eid celebrations and that he had not returned to live there. When asked if she had been to the village, the applicant stated that she had but not to live there.
Regarding her family who all reside in Kuala Lumpur, where the applicant and her husband also resided, the applicant’s evidence was that she is close to her family, they speak two to three times a week and that they have gotten closer as they aged. Given that the applicant resided in Kuala Lumpur since she was 12, went to school and university there, and it is the area where her and her husband resided prior to and after their marriage and where their first son was born, I find it very difficult to accept that if returned to Malaysia, she would return to her husband’s village where they have never resided, particularly given her concerns for her children as discussed below. In addition, I note that the applicant did face financial issues, in the form of not being able to continue her business and defaulting on loan repayments, which caused her great distress. The applicant’s evidence does not indicate that during the last several years that they resided in Kuala Lumpur and faced financial difficulties, that they considered moving to Kelantan, where she claims the cost of living is lower than Kuala Lumpur.
As discussed with the applicant at the hearing, considering the applicant’s education and having established and operated a business for many years in Malaysia, in the context of country information cited above, I do not accept that the applicant will not be able to obtain employment if returned to Malaysia to support herself. I also note the applicant’s evidence that in Australia she has produced [products 2] which she sells in Malaysia and that she has saved money from the proceeds of selling [products 2]. I don’t accept, and the country information cited above does not support, the applicant’s assertion that she will not be able to find any employment to support herself and her children.
As discussed with the applicant at the hearing, even if the applicant and her husband decide to return to Kelantan because of the lower cost of living in the area, they would not be compelled to do so and would be going there by choice and after weighing their family circumstances. I note the applicant’s evidence that her husband’s family are residing there, picking up jobs that have sustained them.
On the evidence before me and considering the applicant’s circumstances, including her age, I am not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood of any kind, such that her capacity to subsist would be threatened. I am not satisfied that the applicants face a real chance of persecution in the reasonably foreseeable future, if returned to Malaysia.
Children’s education in Malaysia
In her statement to the Tribunal, the applicant states that she is a mother of [number children]. She states that her firstborn [age]-year-old son and [one child] born in Australia, have been at school in Australia since they were [ages] respectively. I accept that the applicant’s [children] are attending school in Australia. A letter of support from [School 1] confirms that the applicant’s [second child] started kindergarten at the school in February 2022. The letter supports that the applicant’s [child] is friendly, attentive and achieving satisfactory results in all learning areas.
In her statement, the applicant submits that her children have adapted well to the Australian environment and education system and are progressing well. The applicant believes that they will face difficulties if they study in Malaysia. The education system in Malaysia is totally different and changes whenever there is a change in leadership, students are used as guinea pigs of the system and the language used during school hours is mainly Bahasa Malaysian. The applicant claims that she is aware of the situation due to information on social media and news and that she has verified this with close friends in Malaysia.
The applicant also provided the Tribunal with a letter from an English language teacher, who graduated from University of Malaysia, Kuala Lumpur. The letter indicates that the writer was aware of a student who returned from Australia and enrolled to continue her secondary education in SMK Kiaramas, in Kuala Lumpur. The student had a deep Australian accent, her classmates had difficulty understanding her, she became stressed, started to relax during English classes, and that her inability to comprehend other subjects led to her losing interest in her studies. She was lonely and had no friends and became rebellious towards her parents. The writer recommends that children should finish their study in the country in which they start studying and that it is not fair to move them. The applicant also provided a letter of support from a friend who resides in New York City dated 24 August 2023. The writer explains that she met the applicant at university and attests to the applicant’s commitment to her family and active involvement in her children’s education. The writer indicates that having personally experienced the challenges of relocating at a young age, she understands the difficulties of integrating into a new culture and education system. At the hearing, the applicant confirmed that she met her friend at university and stated that her friend returned to Malaysia to go to school, but she faced challenges and had no friends. The applicant confirmed that despite the challenges, her friend completed her schooling and went to university, where they met.
At the hearing the applicant was referred to the bundle of information which appears to be about the syllabus in Malaysia, including photos of workbooks used by students at school and parents’ posts on websites engaging in conversation about the syllabus and expressing their concerns about the level and difficulty of information taught at Malaysian schools. The bundle of information also includes news articles published in “TRP” Malaysia, comparing the Malaysian school syllabus with the United States school syllabus. In expressing the view that the information was regarding the syllabus and material taught in Malaysia and provided views comparing the Malaysian school syllabus to that of the United States, the applicant was asked whether the information served any other purpose. The applicant stated that it was provided to show the comparison between the United States and Malaysian education systems and provided no further submission as to the relevance of the information for the purposes of this review.
The applicant’s mother’s statement and her oral evidence given at the hearing also referred to the applicant’s children being happy in Australia and that students who return from abroad find it difficult to adapt to the Malaysian education system. The applicant’s mother expressed the opinion that although the education system in Malaysia is not bad, she feared that the applicant’s children would be lost in translation. Both the applicant and her mother expressed concerns regarding the applicant’s children’s Malay language abilities, in that they only know a few Malay words. At the hearing the applicant was asked what language she and her husband spoke at home. She stated that although they speak in Malay between themselves, her children do not understand the language and they have to converse with their children in English. The applicant was asked about her husband’s English language ability, and she stated that he was not fluent in English. In response to the observation that she was using a Malay interpreter to give evidence and being asked how it was that she only spoke in English with her children, the applicant stated that her children do know some words but cannot speak in full sentences and that when she spoke to them in Malay they responded in English. I note that the applicant’s oldest [child] was born in Malaysia and resided in Malaysia for three years with the applicant and her family, prior to coming to Australia. The applicant claims that neither she nor her husband knew much English when they arrived and that her husband is still not fluent in English. I also note that during the hearing, the applicant primarily gave evidence in the Malay language using the interpreter. Given these matters, I have some difficulty in accepting that the applicant and her husband have not taught or do not speak with their children in the Malay language at home. While I accept that the applicant’s children, particularly the younger [children] born in Australia, prefer to speak in English at home, the applicant’s evidence is that she does speak to them in Malay, which they respond to in English, and that they can speak in Malay although not in full sentences.
The 2021 DFAT report[3] indicates that primary school education (six years of education, beginning at age seven) is free and compulsory in Malaysia. The Education Act (1996) requires parents to register their children at the nearest school before the child reaches the age of six, and the child must remain in school for a minimum of six years. As of July 2018, there were 7,776 national primary schools in Malaysia. In the 2021 Federal Budget, for example, the government increased its funding for its ‘Bumiputera agenda’ from MYR8 billion in 2020 to MYR11.1 billion in 2021, with the largest share of that money focused on education. The Study Malaysia website states that the Malaysian government provides free education for six years at primary level and five years at secondary level.[4]
[3] DFAT, “DFAT Country Information Report Malaysia”, 29 June 2021, 20210629092134.
[4] A Glance At The Malaysian Education System - StudyMalaysia.com, accessed on 14 November 2023.
At the hearing in acknowledging the applicant’s concerns for her children and her desire for her children to remain in Australia, it was observed that her children are still very young. While they may face some challenges going into a different school and learning to converse in a new language, and that they may require some time to adjust to a new environment, the country information, including some information that the applicant has produced for the purposes of the review, indicates that Malaysia has a good education system, there are national primary and secondary schools free of charge, and there is no information to support that her children will be denied access to education for any reason. The applicant stated that she feared that her children may be bullied coming from Australia. In response to my observation that children in any country, including in Australia, may be subjected to bullying and that alone cannot be the basis of being offered protection, the applicant stated that in Australia her children’s friends are aware of bullying, the school uses puppet shows about anti-bullying and talks about diversity. The applicant also stated that a friend told her that their child was bullied because the child spoke good English and that her husband was bullied. While I accept that the applicant does not want her children to return to Malaysia, considering the applicant’s and her son’s circumstances in the context of country information before me, I am not satisfied that the applicant’s children will be denied access to education for any reason, or that any challenges or difficulties that they may face in adapting to a new environment and learning the language, would amount to serious harm. Accordingly, I am not satisfied that the applicants face a real chance of serious harm for this reason in the foreseeable future, if returned to Malaysia.
At the hearing, the applicant did not make any reference to information in her statement about the level of difficulty of material taught in Malaysian schools, students carrying heavy bags, the size of the classes or that she will be forced to enrol her children in private school which would be very expensive. I do not consider these issues to amount to persecution or that the applicant will have to enrol her children at private school causing her financial difficulties. As indicated above, the applicant’s children will have access to free education if returned to Malaysia.
Refugee assessment
Having regard to all the evidence before me and considering the applicants’ overall profile and the totality of their circumstances in the context of the country information, I am not satisfied that the applicants face a real chance of persecution in the foreseeable future if returned to Malaysia. I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s 5(J) of the Act.
The applicants do not meet the requirements of the definition of refugee in s 5H(1). The applicants do not meet s 36(2)(a).
Complementary protection assessment
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that the applicants would suffer significant harm.
Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
The Federal Court[5] has held that ‘real risk’ imposes the same standards as the ‘real chance’ test.
[5] MIAC v SZQRB (2013) 210 FCR 505.
As indicated above, I am not satisfied that the applicants face a real chance of serious harm on return to Malaysia for reasons of the applicant’s default on her business loans taken out over a decade ago. Given my findings and reasons cited above, I am also not satisfied that the applicants would face a real risk of any treatment or difficulties in this regard that would amount to significant harm. I am not satisfied that the applicants would face a real risk of being arbitrarily deprived of their lives or be subjected to the death penalty or tortured. I am also not satisfied that any difficulties they may face would amount to pain or suffering that is cruel or inhuman in nature, severe pain or suffering or extreme humiliation for the purposes of the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment.
I am not satisfied that there is a real chance that the applicants would be denied the capacity to earn a livelihood, such that the applicants’ capacity to subsist would be threatened. I am also not satisfied that the applicant’s son would be denied access to education or that during the period of the applicant’s children’s journey of adapting to a new school system and environment, the applicant or her son would face challenges or difficulties that would amount to serious harm. Given my findings and reasons and country information cited above, I do not consider that any challenges or difficulties that the applicant may face in obtaining employment or with taking her children to a new environment and the difficulties that the applicant’s son may face in adjusting to a new school and learning environment, involves significant harm. I am not satisfied that there is an intention to inflict pain or suffering that can reasonably be regarded as cruel and inhuman in nature, severe pain or suffering or an intention to cause extreme humiliation such as to meet the definitions of torture or cruel or inhumane treatment or punishment or degrading treatment or punishment. I am also not satisfied that the applicants will face a real risk of being arbitrarily deprived of their lives or be subject to the death penalty or tortured. I am not satisfied that the applicants face a real risk of significant harm as defined.

I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that the applicants would suffer significant harm for any reason. I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Membership of family unit of a person
Under s 36(2)(b) or s 36(2)(c) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who (i) is mentioned in s 36(2)(a) or (aa) and (ii) holds a protection visa of the same class as that applied for by the applicant.
At the hearing, the applicant confirmed that her husband’s protection visa application was refused by the Department and that decision was affirmed by the Tribunal. As neither of the applicants meets the definition of refugee or the complementary protection criterion, and there is no suggestion that they are a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act who holds a protection visa, it follows that they also do not meet the family unit criterion in either s 36(2)(b) or s 36(2)(c).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Samira Kamandi
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 4584

28 November 2023

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