1730252 (Refugee)

1730252 (Refugee) [2024] AATA 1320 (24 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1730252

COUNTRY OF REFERENCE: Malaysia
MEMBER:Tony Caravella
DATE:24 January 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 January 2024 at 10:12am
CATCHWORDS
REFUGEE – protection visa – Malaysia – closure of business – economic hardship – family pressure to end marriage – applicant disowned by her family – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; r 1.12
CASES
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 27 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 5 October 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of a protection (Subclass 866) visa. In particular, the delegate found the applicant did not satisfy s 36(2) of the Act.
Issues
The issues in this review are whether there is a real chance that if the applicant returns to Malaysia, the applicant will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act. If not, then the issue is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 18 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [named] who is also an applicant for a protection visa and has made his own separate application.[1]
CLAIMS AND EVIDENCE
[1] See AAT Case 1730267.
The applicant’s background and procedural history
In her Application for a protection visa (‘Form 866C’), the applicant declares that she was born in [specified year] in Persekutuan, Kuala Lumpur, Malaysia. She declares her citizenship to be Malaysian. She declares she is not a citizen or national of any other country, and declares she has no right to enter or reside, temporarily or permanently, in any other country.
She declares that she speaks English and Malay, and claims she belongs to the Malay ethnic group. She claims her religion to be Islam.
The applicant declares her marital status to be ‘married’ and claims she married in Kuala Lumpur [in] December 2014.
She declares her occupation to be ‘[occupation 1]’. She declares that she worked in that role in Malacca from 2016 until the present time, that is until she completed the Form 866C. She also claims she worked as a co-owner and ‘[job title]’ in Kuala Lumpur from March 2015 to January 2016. She claims she [in industry 1] in Kuala Lumpur from September 2014 to February 2015. She claims she operated a [products 1] business in 2015, and worked [Employer 1] in the [named] department from April 2014 to April 2015. She also claims she worked [in a specified role] with [Employer 2] from April 2013 to April 2014.
In relation to her education and qualifications, the applicant declares she completed her primary and secondary schooling in Kuala Lumpur. She also claims she completed a course in [Course 1] at [College 1] from July to December 2007. She declares she completed [Course 2] at [College 2].
She claims she last arrived in Australia [in] August 2017 and arrived at the Sydney International Airport. Apart from her travel to Australia, the applicant declares that she travelled to [Country 1] [in] September 2015.
The gist of the applicant’s claims made to the delegate
In her Form 866C, she writes that she left her country due to the pressure from her family in relation to her husband’s financial situation. She claims she and her husband set up a company and that the business dropped, and they closed down the business. She claims she was depressed.
She claims her family insisted she demand financial support from her husband even though his current situation is that he is unable to provide for the family. She claims this affects her relationship with her husband and with her in-laws.
She claims that at one point her family asked her to leave her husband and insisted she do so because of her husband’s debt. She claims she came to Australia to start a new life with her husband and at the same time to continue her study.
In response to the question in the Form 866C asking what she thinks will happen to her if she returns to Malaysia, she claims she will go through mental torture caused by her family who want her to leave her husband. She claims she and her husband will not be able to live their life as a normal husband and wife. She also claims they will not be able to repay all their debt, and this will cause more stress to her and her husband.
In response to the question in the Form 866C asking if she experienced harm in her country, she claims she experienced mental torture and felt de-motivated. She claims this was from her parents and her in-laws who were forcing her and her husband to separate. She also claims she experienced anxiety.
In response to the question in the Form 866C asking if she sought help in her country after the harm, the applicant claims she went to an unofficial marriage counsellor (a friend) who she claims advised her to start a new healthy life in Malaysia. She claims she also went to a doctor who gave her a supplement.
Where the Form 866C asks if the applicant moved, or tried to move, to another part of her country, the applicant declares she lived with her parents in Kuala Lumpur for one year but this ‘did not work out’. She also claims she rented for half a year in [District 1], and claims she lived in Malacca with her in-laws for one year. She claims she then rented for half a year in Kuala Lumpur. She claims that even though she moved around, her family still came to her place, and she cannot forbid them to visit.
Insofar as future harm is concerned, the applicant claims she will suffer mental torture and depression from both sides of her family, stress due to their debt, and they will be disowned by her family due to not listening to their demands.
In relation to whether the authorities in her country can and will protect her if she returns, the applicant declares there is nothing the authorities can do because this is a domestic issue. She claims this kind of case usually ends with a police report/counselling, or they have to get a divorce.
The applicant declares that she and her husband have already relocated to other places but were still unable to avoid family who kept disturbing them.
The delegate’s decision
In brief, the delegate found the applicant claimed a fear of economic hardship in Malaysia. In particular, the delegate found the applicant had not claimed the harm feared was because of her race, religion, nationality, political opinion, or as a member of a particular social group. The delegate found no information to suggest the applicant would be targeted upon her return to Malaysia for one or more of the reasons mentioned in s 5J(1)(a) of the Act.
The delegate also found, amongst other things, that the economic harm the applicant may suffer on her return to her country does not amount to significant harm as outlined in s 36(2)(aa) of the Act, and that the applicant is not a person to whom Australia owes protection obligations.
Documents provided to the Tribunal prior to the hearing
·A letter dated 13 November 2018 titled Case ID 1730252 – Appeal for Visa Application (Protection Visa), in which, amongst other things, the applicant provides background about her travel to Australia, comments on working in the [industry 2] here, comments on the irregularities in Malaysian migration to Australia, and a statement claiming they (she and her husband) made a mistake by applying for this [protection] visa;
·Written references, including references from [five named persons];
·A letter from [names] (the applicant’s mother and sister, respectively);
·Various photographs, including photographs of the applicant at a wedding;
·Photographs relating to Malaysians working illegally in the [industry 2] in Australia;
·An Abridged Incident Information report showing the report made in relation to stolen luggage, stolen cash and stolen passport;
·A National Criminal History Check for [the applicant] showing no disclosable events;
·A Team ID card for [the applicant] issued by [Employer 3].
Evidence given at the Tribunal hearing held on 18 December 2023
Background
The applicant commenced her sworn oral evidence by telling me she continues to study for her [Qualification 1]. She said this is an online course through [College 3]. She expects to finish the course in October 2024.
In relation to the Form 866C, she told me she completed this form herself with the aid of a third party to whom she paid AUD 550.00. She said that the third party is also a protection visa applicant who has been in Australia for 7 years. The applicant told me that her statement in the Form 866C in reply to the question asking why she left her country is essentially correct. That is, due to the pressure from her family related to her husband and their financial situation and their business failure. She referred to the adverse effect on her, and on her relationship with her husband. She also claimed her family asked her to leave her husband and that she came to Australia to start a new life with her husband and to continue her studies.
She told me she has anxiety about returning to Malaysia. She said she [has siblings of specified ages]. She said [one sibling] works with [Employer 4] as a driver. [Another sibling] works in administration. Her father is retired after working [with a named employer]. He now works as [another occupation]. Her mother is a full-time homemaker. Her mother used to look after the children of her siblings, that is her mother’s grandchildren. She looked after them when they were children, however, they are now adults with an age range of [age range] years.
She told me that in her culture, family is very important, and the eldest child is expected to set the tone for everyone else. She said when she was in Malaysia she worked and earned ‘a decent amount’ and would help to cover the cost of her siblings’ school books and other expenses.
Debt problem
She told me when her [service 1] business collapsed, she and her husband were ridiculed and her uncles and aunts, that is her mother’s siblings, told the applicant’s mother that the applicant was a failure. She told me that they were from a poor family and her mother had to care for her siblings. Her uncles and aunts used to help the applicant’s family financially and now feel they have a right to criticise and a right to determine such things as who she should marry and what she should do.
The applicant told me that before she married, she worked as [in a role] with entities located in [Country 2]. This meant she would work from [time range] due to the time difference between Malaysia and[Country 2]. Her husband would work during the day, so they would rarely see each other. She decided to change things and resigned and used some savings, and also obtained a government grant of 5,000 Ringgit, and opened a ‘[service 1] business’. The business was called [name]. It began trading in February 2015.
She told me that the government grant of 5,000 Ringgit is not repayable despite the failure of their business, however, she also borrowed a further amount of around [amount] Ringgit from a finance company which she told me was called [Business 1]. She then told me she cannot recall how much she owes [Business 1], then said she thinks it was about [amount] Ringgit. She then said her mother forwarded her letters from debt collectors. She said she tried to pay back the money she owed. She said [Business 1] is affiliated with the government, and she does not fear harm from them. She told me that because of the debt she became depressed and had suicidal thoughts. When I asked why she could not return to her country, get a job there, and slowly pay the debt back, she told me it would take a very long time to pay it back. She told me she could earn maybe 1,500 to 2,200 Ringgit a month, and rent is about 1,000 Ringgit per month.
When I asked how much of the debt she has repaid while in Australia, she told me of her experience upon arriving in Australia and that she started work as [an occupation 2] in the [District 2] area. She talked about how little they earned from such employment initially, and said her income has improved since 2020. She said they have no other assets to sell after their motor vehicles had been repossessed. She told me her husband, who is also a protection visa applicant, also owes around AUD [amount] due to his failed business activities in Malaysia.
When I asked her if she had ever been harmed in Malaysia, she told me that on one occasion, 3 or 4 Indians approached her while she parked her car. Her husband had gone for a job interview. The Indian men harassed her and said they wanted to take the car due to the loan default. Some passers-by intervened and the Indian men discontinued their harassment on that occasion. She told me there were other instances where the debt collectors sought to repossess the motor vehicles, and they eventually repossessed 2 cars.
I asked the applicant if she and her husband have been making loan repayments while they have been living and working in Australia. She indicated they have been making payments. I invited the applicant to submit documentary evidence to demonstrate that payments have been made.
Family problems
I turned to the applicant’s claim where she asserts her family place pressure on her and her claim that they want to force her to leave her husband. The applicant told me she met her husband-to-be in May 2012. It was not an arranged marriage. He approached the applicant’s mother with a proposal to marry. Her mother rejected it at first on the basis that he did not have a steady job; however, after he secured work in a [business], the applicant’s mother agreed to the marriage, and they married in December 2014.
She told me her [service 1] business collapsed in 2015 due to one large client placing a very large order, and then refusing to pay for the [service] provided. She said after this loss, her mother’s siblings started to direct insults and ridicule to the applicant’s mother. She told me this led to arguments, and they therefore decided to leave Kuala Lumpur and moved to live with her husband’s relatives in Malacca. She told me she secured work in Malacca from January 2017 to February 2017. She was paid 1,800 Ringgit per month net. Her husband also had some work there.
When I asked if they were ever harmed while they were in Malacca, she told me ‘Yes, the [Bank 1] sought to repossess my car.’ She also told me how debt collectors turned up at their house and were forceful and intimidating, however, her husband prevented them from entering the house. She told me her husband made a complaint to [Bank 1] and the bank sent a letter of apology.
In February 2017, her mother was diagnosed with hepatitis C. The applicant would return to Kuala Lumpur to provide help and support to her mother. She said she would continue working in Malacca and would travel between Malacca and Kuala Lumpur, which she said was about 90 minutes away. Her mother was discharged from hospital in February 2017.
The applicant told me she purchased a franchise for a [product 1] stall. The business was called [name]. She said she paid a franchise fee of 4,500 Ringgit and the business operated from March to May 2017. She told me they then relocated the business to a night market during the Ramadan period. She told me she would juggle the business, and also look after her mother, and her husband would also coach [sporting teams].
The applicant told me that one of their employees in their [product 1] franchise was her uncle’s adopted son. He turned out to be an unreliable worker. She ultimately terminated that worker’s services, and this caused the applicant’s uncle to become angry and to abuse the applicant’s mother. The applicant’s mother then became angry at the applicant and her husband. The applicant said she still hoped to sort out all the problems but then she became depressed and could not sleep and had suicidal thoughts. She said she posted those thoughts on [social media]. When I asked if she sought or obtained any psychological treatment or support, she told me mental health is a taboo topic in Malaysia and she did not get any psychological treatment or even any medical treatment. I referred the applicant to the Country of Origin Information (COI) in the Department of Foreign Affairs and Trade (DFAT) report which reports on mental health in Malaysia. I acknowledged the report states, amongst other things, that there is a significant stigma associated with mental health issues in Malaysia, however, the report also states that services are generally provided by general practitioners and non-mental health specialists.
The applicant told me that her [Uncle A] then told the junior [sport 1] team that was coached by the applicant’s husband they should not associate with the applicant and her husband because they terminated the employment of the uncle’s adopted son. This caused the [sport 1] players to be alienated from the applicant and her husband. She said they used to be very close to the team and used to spend a lot of time together. She described them as being ‘like family’ and she felt she lost her family and she fell into a deep depression.
The applicant told me that a particular aunt told her that it was a good thing that God had not blessed her with a child. The applicant told me she wants to have a child, but they decided to wait until their future is more certain.
I asked why they did not simply disconnect from these offending family members and cut them out of their life. She told me when they moved to Malacca, they cut them off, but in the Malay culture family is everything.
I put it to the applicant that while I could understand the pressure her family might have put on her, based on the evidence before me so far it did not appear to amount to serious harm, or that there was a real risk that she or her husband would face persecution or significant harm if she and her husband returned to her country. The applicant responded by telling me of an incident when she was staying with friends and her father, mother and uncle tried to call her and when they finally communicated they said they could not get away from the family.
I put it to the applicant that I would have to consider whether it would be viable and reasonable for them to move away from her family to avoid the harassment. She responded by saying that in Australia she has a stable career and income, and she can help her family. However, if she returns to Malaysia, she will fall back into depression and the only way to make everyone happy is for her to end her life.
The applicant then told me she acknowledged she may not meet the criteria for a protection visa. She said she is also looking into the possibility of a Subclass 190 and 491 visa to remain in Australia. She said she thinks they may have made a mistake by applying for a protection visa. She also said they want to return to visit family in their country but are worried she might not be able to return to her country if they are granted a protection visa. I put it to her that it could appear quite inconsistent with her claim if she returned to the country in which she claimed she faced serious or fatal harm.

The applicant’s husband, [named], joined the hearing. When I asked if he could make any comment on his wife’s protection visa claims, he said he could confirm she became very mentally depressed after the business failure. He told me that while he did not have experience in mental health, his wife would stay in her darkened room all day and she would not communicate with anyone. They were living in her parents’ house at the time. He told me he thinks the business failure caused this and they had no solid income. She avoided talking with him. He said the applicant’s uncles and aunts would not raise their concerns with him. He told me her family are pressuring her to leave him. He said he tried to motivate her and to be supportive and they tried to move to Malacca and also tried living in Penang, but it did not help. He said although she might be able to get professional help, he is not convinced it would help. He also said that because the salary in Malaysia is low, it would be difficult to re-establish themselves there.
At the end of the hearing, I invited the applicant to submit, by 14 January 2024, the following documentary evidence:
·     Copies of document(s) evidencing the claimed loans;
·     Evidence of the applicant’s repayment instalments remitted to Malaysia from Australia in relation to the loans;
·     Evidence of letters of demand received from creditors or debt collectors.
On 14 January 2024, the Tribunal received an email from the applicant. The email states that payments have been made to her mother over the past 7 years and this has cleared a substantial amount of the debt. The email goes on to say that there is still some remaining debt under her husband’s name. The applicant claims she ‘only have some study loans left to pay.’ Attached to the email are a credit check statement for the applicant and her spouse (‘MyCTOS Score Report’).
Relevant Country of Origin Information (COI)
In relation to the state of the Malaysian economy DFAT reports:[2]
2.9 The World Bank classifies 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 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products.
2.10 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. 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
2.11 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
[2] DFAT Country Information Report Malaysia, 29 June 2021,
On the question of state protection, DFAT reports, amongst other things:
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which was created in 2009 as part of the government’s response to police corruption.
In relation to the judiciary in Malaysia DFAT reports:
5.18 DFAT assesses that, while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
In relation to mental health treatment in Malaysia, the DFAT report[3] states:
2.21 Malaysia spends approximately 3.9 per cent of GDP a year on health (roughly half public and half private), and has recorded significant improvements in health standards in recent decades. Life expectancy in Malaysia is 73 years for males and 78 years for females. The infant mortality rate is 11.4 per 1,000 births. Non-communicable diseases account for 73 per cent of deaths, including 35 per cent of deaths among people under 35.
2.22 Malaysia has a well-established universal health care system, accessed by around 78 per cent of the population, and modelled on the United Kingdom’s system. Malaysia’s two-tiered health system consists of nation-wide public health care centres and hospitals administered by the Ministry of Health, and a growing private health sector, which predominantly offers services in urban areas. Primary healthcare treatment or a first line treatment via public healthcare would incur a fee ranging from MYR1 – MYR5 (approx. AUD0.30 to AUD 1.6) per visit, and a visit to a private GP would cost MYR30-MYR125 (AUD 9.50-AUD40). Health care is generally accessible to all residents in urban areas in peninsular Malaysia, with health facilities generally available within five kilometres of residence.
Mental Health
2.26 The Ministry of Health’s 2018 National Health and Morbidity Survey found that just under one in three Malaysians aged 16 years and above were living with a mental health issue, but public mental health services remain limited. Due to a lack of mental health professionals, public services are generally provided by general practitioners and non-mental health specialists. Private mental health services can cost upwards of MYR300 (AUD95) per consultation. Because most private health insurance does not cover mental health services in Malaysia (as of July 2019, Malaysia AIA became the only such company to provide coverage), access can be cost prohibitive. There is also significant stigma attached to mental health issues in Malaysia.
[3] At paras 2.21 and 2.22, and para 2.26
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include [insert relevant relationship].
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Will the applicant be persecuted on return to Malaysia?
I accept the evidence before me demonstrates the applicant is a national of Malaysia and does not have a present enforceable right to enter temporarily or permanently any other country. I am satisfied that she is outside her country of nationality and that unless she meets the criteria for a protection visa in Australia she is subject to removal to Malaysia. I have therefore considered the COI in relation to relevant circumstances applicable to Malaysia as the country of reference.
I will consider the applicant’s claims under the following headings:
·Fear of harm due to failed business and financial pressure and debts, and economic hardship generally;
·Fear of harm from her family members by virtue of their pressure and meddling.
Fear of harm due to financial pressures, debts, and economic hardship
I accept the applicant’s claims where she asserts that she married in Kuala Lumpur, Malaysia [in] December 2014 and that she presently continues to live with her husband who is also a protection visa applicant.
In the absence of relevant controverting evidence, I proceed by accepting the applicant’s claims as to her education and past work experience in Malaysia. I find she has been able to secure and hold a range of paid employment in her country. I also accept that after working inconvenient hours which she found adversely limited the time she could spend with her husband, she decided to launch a [service 1] business which unfortunately failed due to bad debt and leaving her with outstanding debts in around 2015. I also accept this financial situation was made worse because of her husband’s financial troubles where he also owed money.
I accept the applicant’s claim that she experienced financial stress and anxiety and also experienced pressure, criticism and meddling by members of her family who criticised her for her business failure. I accept the applicant considered this amounted to ‘mental torture’ which she claims led to feelings of depression, however, based on the evidence before me I do not accept it amounts to ‘torture’ as defined in s 5(1) of the Act. I accept in their circumstances she and her husband decided to leave Malaysia and come to Australia to make a new start. I accept the applicant last arrived in Australia [in] August 2017 and has remained in Australia since then.
I have considered the applicant’s claim where she told me she and her husband have no assets to sell after their motor vehicles had been repossessed by debt collectors. While I have sympathy for the applicant, I find that forfeiture of assets is a common consequence of insolvency and that the loss of the applicant’s car does not amount to serious harm in this case. I have also considered the applicant’s claim where she told me at the hearing that 3 or 4 Indians approached her while she parked her car and they harassed her to pay the debt or give up her car. I accept her claim that passers-by intervened and the Indian men discontinued their harassment on that occasion, however, I find no credible evidence to suggest they intended anything more than to seize the applicant’s car in lieu of the loan repayment. In respect to her claim that there were other instances where debt collectors sought to repossess the motor vehicles, or to collect the debt, I find the evidence suggests nothing more than these instances being instances of debt recovery and did not result in serious harm to the applicant, and nor do they suggest there is a real chance of the applicant facing future serious harm or persecution from creditors, or their agents, in Malaysia now or in the reasonably foreseeable future.
I have considered the applicant’s evidence given at the hearing where she told me, and then confirmed it in her written statement after the hearing, that she and her husband have been making loan repayments while living and working in Australia. I find this evidences a conclusion that the creditors continue to be willing to accept loan repayments to ultimately settle the loan. I find no credible evidence before me to suggest that such a willingness to accept ongoing periodic repayments from the applicant would change in the event that the applicant returns to her country.
I accept the applicant’s claim where she asserts that she and her husband continue to owe money in Malaysia and that if they are returned to that country she and her husband would be required to secure paid employment and would be required to enter debt repayment arrangements with her creditors. While I accept the applicant might find this an unappealing prospect, and she might consider any repayment arrangement would result in her being obligated to make periodic payments over a substantial period of time, I do not accept this amounts to the applicant facing a real chance of serious harm. Nor do I find the evidence before me suggests that any of her, or her husband’s, creditors have demonstrated an intention to inflict serious harm on the applicant, or her husband, now or in the reasonably foreseeable future if they return to Malaysia. In fact, I find the applicant’s own evidence is that [Business 1] is affiliated with the government, and she does not fear harm from that entity.
I have also considered the applicant’s claim in relation to the conduct of agents acting for the [Bank 1] when they sought to repossess the applicant’s car. I accept that the debt collectors who turned up at their house and were forceful and intimidating acted inappropriately. However, I find they did not inflict serious harm, and find after her husband made a complaint to the [Bank 1], the bank sent a letter of apology.
I accept that the applicant would have to find paid work in her country, and based on the evidence before me, including her educational qualifications and past work experience, coupled with the COI reporting on the comparatively low level of unemployment in Malaysia, I am satisfied the applicant will be able to find paid employment within a reasonable time of returning to her country. I accept there is a possibility that she may earn less than she is earning in Australia, and that she would need to budget carefully to meet her expenses and to meet her debt repayments. However, I am not persuaded that the evidence suggests she will suffer severe economic hardship or would be unable to subsist if she is returned to her country now or in the reasonably foreseeable future.
I have considered the applicant’s claim that she experienced depression and also had contemplated suicide before she left Malaysia to come to Australia. While I accept that financial and family pressure can cause depression, having regard to the COI before me and which reports on mental health services in Malaysia, I find that the applicant can reach out for help and utilise the mental health services available in her country. Based on the COI before me and which I have cited in this decision, I do not accept her proposition that because the issue of mental health, and in her case depression and anxiety, may be taboo in her country, that she cannot avail herself of adequate treatment if she required it.
Fear of harm from her family members by virtue of their pressure and meddling
I have considered the applicant’s claim where she asserts that her family insisted she demand financial support from her husband even though his current situation is that he is unable to provide for the family. I have considered her claim that this affects her relationship with her husband and with her in-laws. I have also considered her claim where she asserts that at one point her family asked her to leave her husband and insisted that she do so because of her husband’s debt. I am prepared to accept that the applicant’s immediate family, and also her extended family, are meddlesome and interfering as claimed, and accept they have been critical of the applicant’s business failures and disapprove of her husband. I accept her claim that the wider family has previously provided financial support and that the applicant has also previously assisted the family financially as claimed. I accept that her family’s attitude towards her may cause her anxiety, embarrassment, stress and depression in the context of the cultural and traditional importance of family in the applicant’s country, as claimed. However, I do not accept that such familial interference has resulted in serious harm or persecution to the applicant in the past, or that it gives rise to a real chance of such harm now or in the reasonably foreseeable future. Nor do I find any evidence to suggest the harm that results from such meddling and criticism and pressure, is harm that is inflicted for one or more of the reasons prescribed for the purposes of refugee protection in s 5J(1)(a) of the Act.
Looking to the reasonably foreseeable future, I find that if the applicant is removed from Australia and returned to Malaysia, even if her family and her in-laws maintain their meddling and criticism and pressure, based on the evidence before me, I find such treatment or conduct by her family or in-laws would not result in serious harm amounting to persecution to the applicant. I find the claimed mistreatment therefore fails to meet the requirement prescribed in s 5J(4)(b) of the Act.

I have considered the applicant’s claim where she asserts that she will go through mental torture caused by her family who want her to leave her husband. While I accept that she may feel some pressure from her family, and from her in-laws, I am satisfied there is nothing in the evidence before me to suggest her family can actually put such pressure on her and on her husband to force them to separate or to divorce. Relevantly, I find the applicant has given evidence that she and her husband relocated to Kuala Lumpur and to [District 1], and Malacca, and that she was able to find employment in Malacca from January 2017 to February 2017, and that her husband also had work there. I accept her claim that the applicant considers she could not forbid her family from continuing to contact her and her husband, wherever she goes. I am satisfied the applicant did not suffer any serious harm during the time they relocated, or indeed at any other time in Malaysia. I am not persuaded that the evidence presented and before me suggests that there are such cultural or familial factors that would prevent the applicant and her husband from simply disconnecting with her family in Malaysia, as they have done by living in Australia, to avoid the meddling and interference and to avoid the pressure exerted by the family for the applicant to separate from or divorce her husband. In relation to her claim that she and her husband will not be able to live their life as a normal husband and wife, I do not accept the evidence before me demonstrates that would be the case now or in the reasonably foreseeable future if they return to live in Malaysia.
I have considered the applicant’s claim where she asserts that she sought help in her country and went to an unofficial marriage counsellor (a friend) who advised her to start a new healthy life in Malaysia. I accept the applicant’s claim in relation to this. I also accept she saw a doctor who gave her a supplement.
I have considered the applicant’s claim where she asserts she and her husband will be disowned by her family due to not listening to their family’s demands. I accept that being disowned might be the consequence of the applicant ignoring her family’s suggestions. However, based on the evidence before me, I reject that such disownment amounts to serious harm of a kind contemplated by s 5J(5) of the Act. I have also considered whether being disowned might worsen the applicant’s mental health or cause serious harm to her mental health, however I am not persuaded the evidence indicates that there is a real chance of this occurring in the circumstances of this case.
Further considerations
I have considered the applicant’s claim where she asserts that internal relocation is not viable or reasonable based on her assertion that she and her husband have already relocated to other places but were still unable to avoid family who kept disturbing them. In assessing all the evidence before me, I find that there is no real chance of the applicant facing serious harm for the reasons she claims.
I have considered the applicant’s claim where she declares she came to Australia to start a new life with her husband and at the same time to continue her study. I accept the applicant continues her studies towards completion of a [Qualification 1], however, I find her studies do not advance her claim for non-refoulement protection.
I have considered all the documentary evidence submitted by the applicant and which I have summarised earlier in this Decision. I accept that the references provide strong support attesting to the character and characteristics of the applicant and her husband. However, I find this is not sufficient to satisfy the tests prescribed in the Act for refugee protection as they do not demonstrate, or even contribute towards demonstrating, that the applicant faces a real chance of persecution in her country.
I have considered the applicant’s claim where she asserts she employed her [Uncle A’s] adopted son in the [product 1] franchise business and that she terminated his services because he was an unreliable worker. I accept this action angered her uncle and that this caused her uncle to abuse the applicant’s mother. I accept this, in turn, caused the applicant’s mother to become angry at the applicant and her husband. I accept this may have added to the applicant’s stress and depression, however, I do not accept the conduct of her uncle or her mother resulted in serious harm to the applicant. Looking to the reasonably foreseeable future, while I accept the uncle’s action may have caused some damage to the applicant’s reputation, and may have alienated some members of the junior [sport 1] team that was coached by the applicant’s husband, I find this does not amount to serious harm of a kind contemplated by s 5J(5) of the Act. Looking to the reasonably foreseeable future, I do not accept this incident, that is the dismissal of the uncle’s adopted son, gives rise to a real chance that the applicant will be targeted for serious harm if she is returned to Malaysia.
At the hearing, the applicant’s husband, in the presence of the applicant, submitted that he faced a real chance of serious harm for reason of having the same first name and last name as his brother who had been the subject of a nationally publicised and reported prosecution for a [serious] crime for which he was ultimately acquitted. There was no submission apparent from the applicant to suggest she wished to make a similar protection claim on this basis. However, I have nonetheless considered the issue and have concluded that there is no credible evidence to suggest there is a real chance that she would be targeted for harm of any kind by anybody for this reason now or in the reasonably foreseeable future if she is returned to Malaysia.
For all of the above reasons, and having regard to all the claims and evidence before me, I find the evidence before me does not demonstrate there is a real chance of the applicant suffering harm amounting to persecution now or in the reasonably foreseeable future if she is returned to Malaysia.
Is there a real risk the applicant will suffer significant harm if removed from Australia to Malaysia?
In order to meet the requirements for complementary protection, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that she will suffer significant harm.
I do not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Malaysia there is a real risk that she will suffer significant harm. I have considered in the preceding paragraphs whether there is a real chance that the applicant would face serious harm in relation to each of her claims. I have also considered whether she would face a real chance of serious harm facing the claimed risks cumulatively. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable in the assessment of ‘well-founded fear’.[4]
[4] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
As discussed in the preceding paragraphs, I have found there is not a real chance that the applicant would face serious harm from her or her husband’s creditors or from the economic circumstances in her country. Nor have I found she faces a real chance of serious harm from her family in particular. Nor do I find there is a real chance of harm facing the applicant for reason of her brother-in-law’s criminal charges. Furthermore, I have found there is not a real chance of the applicant suffering serious mental harm due to being disowned or due to the pressure imposed upon her by her family. For similar reasons, I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm as required by s 36(2)(aa) of the Act.
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 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. In particular, the Tribunal is not satisfied that the applicant’s husband has met the relevant criteria for a protection visa and there is therefore no evidence to suggest the applicant meets s.36(2) of the Act as a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tony Caravella
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.
…

[2024] AATA 1320

24 January 2024

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