1731127 (Refugee)

[2023] AATA 3314

1731127 (Refugee) [2023] AATA 3314 (24 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731127

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:24 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2023 at 4:23pm

CATCHWORDS  
REFUGEE – protection visa – Malaysia – religion – Muslim – education level – discrimination – racist talk in the workplace – economic conditions – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2 

CASES
MIAC 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 30 June 2017. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was a person to whom Australia owed protection.

3. The applicant appeared before the Tribunal on 19 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.

    The applicant’s personal background

12. The applicant is a [age]-year-old male born in Selangor, Malaysia. At hearing he told the Tribunal that his family moved to Melaka many years ago and he attended primary and high school in that city, finishing his education at year 9 equivalent level. He is one of [number] siblings and his family remain living in Melaka.

13. In the visa application the applicant stated that he is of Malay ethnicity and Muslim religion and at hearing the applicant confirmed this was the case.

14. After leaving school, the applicant worked in a number of jobs in Melaka for relatively short periods including in factories and a car wash. It was difficult for him to get or keep jobs because of his lack of educational qualifications.

15. The applicant arrived in Australia [in] April 2017 as the holder of subclass 601 Electronic Travel Authority and lodged the application for the protection visa on 30 June 2017.

16. The Tribunal accepts the above matters to be true.

    The applicant’s claims for protection

17. In the visa application, the applicant states that he left Malaysia because of a hopeless government; a dirty and unfair political system and economic collapse. He stated there was corruption and scandals; education levels had dropped while unemployment increased and security situations involving racism and religious problems for which the government never took responsibility. He stated that he did not know how to survive and searched for a better life.

18. In response to a question asking what he thinks will happen if he returns to Malaysia, he stated that nothing will happen, but he would feel lost and gloomy as if he were wasting his life and his time. In response to a question asking if he experienced harm in Malaysia, he stated he experienced harm of his dignity because of dropping education levels; harm in his spirit because of worries about security and the worst harm was racist and religious. He states he did not try to seek help within Malaysia because nobody could help him so he found a way to leave his country and find a better place to survive.

19. In response to a question asking if he thought he would be harmed or mistreated if he returned to Malaysia, he said returning to his country would only waste his time because of the economic collapse and crime and racism never stopped. He does not think Malaysia’s authorities will protect him because his government’s security department is in a horrible situation.

20. At hearing the applicant gave evidence that he travelled to Australia because he thought it would be easier to get a job here and he wanted to help his family back home. He would like to remain here because working is much easier as people don’t care so much about your qualifications. During the time he has been here, he has lived in Perth picking [fruits] and in Melbourne picking [fruits]. For more than four years now he has been working at a [specified] farm.

21. When I asked the applicant why he had applied for a protection visa, he said that he wanted to remain in Australia. When I asked him if he experienced any problems in Malaysia before coming to Australia, he said there was nothing except that he needed to help his family. He said that if returned to Malaysia, he would return to his family in Melaka with whom he is in regular contact.

22. At the Tribunal hearing I explained to the applicant that a refugee was a person with a well-founded fear of persecution in their own country, which meant the Tribunal had to be satisfied there was a real chance he would be subjected to serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion. When I put to the applicant that this didn’t appear to apply to him, the applicant agreed. When I asked the applicant if there was anyone he thought would harm him in Malaysia, he said there was no one.

23. I asked the applicant if he had any personal experience of the racist and religious problems he had mentioned in the visa application. The applicant stated that when he was working in a factory at the age [age], the issue of religion cropped up along with his education level. When I noted that he had stated in the visa application that he was of the majority Muslim religion, the applicant agreed. He said it was very difficult for him to hear people knock him back because of his education level and there was also racist talk. When I asked him if that racist talk was directed at him or others, he said it was directed at others but he had heard it. I also discussed with the applicant’s DFAT’s assessment that Malaysia’s overall security situation was generally stable and that Malaysian security forces are considered responsible and generally capable.[1] The applicant indicated that he did not have any comment to make on that information.

    [1] DFAT DFAT Country Information Report: Malaysia 29 June 2021 at 2.44

24. DFAT reports that race has historically been a prominent issue in Malaysia and relations between Malaysia’s diverse populations have been tense at times.[2] I accept that the applicant has heard racist talk in his workplace, although he states it was not directed at him. I further accept that religious disputes occur at times in Malaysia, although the applicant adheres to the majority Muslim religion and doesn’t claim to have been personally involved in such disputes. The applicant’s evidence is that he wants to remain in Australia because he finds working here better; that he experienced no difficulties in Malaysia except financial difficulties and that there is no one in Malaysia who would wish to harm him. In these circumstances the Tribunal is not satisfied that the applicant faces a real chance of serious harm for reasons of his Malay ethnicity or his Muslim religion if he returns to Malaysia, now or in the reasonably foreseeable future.

    [2] Ibid at 2.3

25. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3]  For the same reasons the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will be subjected to significant harm by any person or group as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

    [3] MIAC v SZQRB [2013] FCAFC 33 at [246], [297], [342].

26. It was apparent from the applicant’s evidence at hearing that the his primary concern is the discrimination he has experienced in Malaysia as a result of his relatively low level of education and I accept that has affected his economic and employment opportunities.

27. At hearing I discussed with the applicant that economic conditions in a person’s home country do not generally enliven Australia’s protection obligations because the refugee assessment is directed at harm directed at a person for reasons of their race, religion, nationality, membership of a particular social group or political opinion and complementary protection obligations are concerned with intentional acts of harm by other persons. The applicant did not suggest that the financial harm he fears in Malaysia will be directed at him for any of those reasons.

28. The Tribunal accepts that the applicant came to Australia with the intention of working here to help support his parents and siblings in Melaka. However the Tribunal finds that the economic harm feared by the applicant is not for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion and therefore, that harm does not meet the criteria set out in s 5J(1)(a) of the Act.

29. The applicant does not suggest that any economic harm he might suffer in Malaysia would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor does he suggest that he will be subjected to the death penalty in Malaysia for any reason. For these reasons the Tribunal does not accept that any economic harm to which the applicant may be subjected if returned to Malaysia would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A).

    CONCLUSIONS

30. 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).

31. 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).

32. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Alison Murphy
    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.

    …