1801198 (Refugee)

1801198 (Refugee) [2024] AATA 1496 (21 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801198
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sue Zelinka
DATE:21 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 February 2024 at 10:15am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – possible future involvement of gangsters – there are no ongoing threats against him – applicant has acknowledged a change of circumstances since he left Malaysia – cessation of any threat against the applicant – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant whose passport shows him to be a citizen of Malaysia applied for the visa on 13 September 2017. The delegate refused to grant the visa on the basis that he was not satisfied that there is a real chance that the applicant will be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act if he returned to Malaysia.
The applicant appeared before the Tribunal on 19 February 2024 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
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-LA, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a [age]-year old male from Johor (according to his Malaysian identity card) who arrived in Australia in August 2016. Information in the protection visa application indicates that his parents and siblings remain in Johor. He notes that he completed his secondary education in December [year] and records three very brief holidays in January and March 2016, the year he left Malaysia. He stated that he had never worked in Malaysia.
Protection visa application
The applicant set out his claims on the protection visa application (PVA). He stated that he joined [an investment] company in early [year] and then recruited investors who also became staff members. The company “was halted” by the end of 2015 but avoided repaying the invested capital funds. The applicant fears he will be liable to repay all those whom he recruited as staff and who had also invested. This will involve a good deal of money, some [amount] ringgits. He received death threats if he could not repay the money and felt he was watched. He fears that if he returns to Malaysia, the investors may hire gangsters to find him and harm him. He cannot seek protection from the authorities as he may be arrested for cheating people.
Tribunal hearing
At hearing, the applicant confirmed that he had been born and raised in Johor State and his parents and siblings are still there with the same family house. He was educated locally, completing high school at the end of [year] and was biding time the following year, waiting for matriculation results and possible university entry. During 2016, he moved from the family home to a city about an hour away, living with friends and working [until] his departure in August 2016.
The Tribunal asked the applicant to explain carefully about the company with which he got involved in early 2015. He said it was called [name] and had a shopfront and office in his town, staffed by the boss and two or three employees. The company offered investment [details deleted]. Investors were offered a 10% return on their money. The applicant [approached] the company in early 2015 with some money he had saved from his part-time work and invested it. He was told by the boss that if he brought in more investors, he (the applicant) would get a commission. The applicant found four investors over the next couple of months. In answer to the Tribunal’s question, he clarified that the word “staff” as he used it in his PVA (see paragraph 12 above) was incorrect. He recruited no staff, only investors. He himself was not a staff member but was paid a commission for bringing in investors.
He and the other four got several interest payments and the applicant got his commissions. In the middle of the year, the interest payments were not made: the investors waited for a month and then started phoning the boss and visiting the office where the boss prevaricated. There were many investors, not just the applicant and the four he had brought in: the company had been very popular in the town. In August, the company closed its shopfront and office and the boss was nowhere to be found.
In answer to the Tribunal’s question, the applicant said that he believed some investors had sought assistance from lawyers but he has no knowledge of the outcome of those cases. For himself, he had to contend with the anger of the four investors he had personally involved. They felt the applicant should repay them: collectively, the four had invested about [amount] ringgits. To clarify, these four were not working together against the applicant – it was not a group but four separate individuals, each of whom approached the applicant at some time, and on a couple of occasions, one of them hit him.
Throughout this time, the applicant continued at school and finished his final year exams before leaving home as outlined in paragraph 13 above. Even though he moved away, he was still contactable by the four – each had had his phone number – so the applicant would occasionally be harassed by one or another.
The applicant said that in the time he has been in Australia – seven and a half years by the time of the hearing – he has saved up and remitted money to Malaysia, repaying in full all four of the investors whom he involved in the failed company. He said in all honesty that there would be no reason for these four to want to inflict harm on him in the future if he were to return to Malaysia. He did not fear harm for any other reason.
The Tribunal made it clear that if he did not fear any harm befalling him in Malaysia then he was not in need of protection. He said he realised that. He had been fearful at the time he lodged his protection visa application and up to the time when he repaid the debts; however, the circumstances have now changed. He said there are no ongoing threats against him. The Tribunal also put it to him that the harm he had suffered in the past – being hit on a couple of occasions – was arguably not serious harm amounting to persecution. The applicant said that nevertheless he was frightened by the prospect of being hit.
FINDINGS
The Tribunal accepts the applicant’s testimony as told at the hearing and set out above. The Tribunal found it credible and felt the applicant was engaging with the Tribunal in an honest manner. The Tribunal specifically rejects the claim of death threats, lack of protection by the authorities and possible future involvement of gangsters as originally set out in the protection visa application (see paragraph 12 above). The applicant did not raise or pursue any of these points at hearing despite plenty of opportunity to say what he wanted in support of his claims and he specifically denied any ongoing or future threats.
As the Tribunal explained to the applicant, a refugee must have a well-founded fear of persecution in his country of origin and the Tribunal must be satisfied that there is a real chance that he will face serious harm if returned there. In this case, the applicant has acknowledged a change of circumstances since he left Malaysia resulting in the cessation of any threat against the applicant. The applicant has specifically stated that he has no fear of serious harm in Malaysia if he returns.
It follows that the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Malaysia in the reasonably foreseeable future.
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sue Zelinka
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 1496

21 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction