1806512 (Refugee)

1806512 (Refugee) [2024] AATA 2178 (13 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806512
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Hollie Kerwin
DATE:13 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2024 at 5:45pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – economic conditions and financial hardship – employment prospects and income – age, ethnicity, education and absence from workforce – support for elderly parents – late claims of loans from friends and father’s loan from bank, and ethnically-motivated violence by Malays against Chinese – application made soon after arriving, with advice from a friend but no legal assistance – no adverse inference drawn – vague claims and evidence of loans, and no supporting documentation – country information – economic conditions not attributable to acts or omissions of identifiable actor – work history and availability of social welfare – low-level ethnic discrimination and isolated violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASE
GLD18 v Minister for Home Affairs [2020] FCAFC 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 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 Home Affairs on 20 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Malaysia, applied for the visa on or about 22 December 2017.
The delegate refused to grant the applicant a protection visa on the basis that neither of the claims the applicant made to fear harm on economic grounds met the test for persecution under s 5J(1)(a) of the Act, being unrelated to reasons of race, religion, nationality, membership of a social group or political opinion. The delegate also rejected the applicant’s claims under the complementary protection criteria, ultimately finding that any ‘economic hardship the applicant may suffer…does not amount to significant harm’ if he was to be returned to Malaysia.
The applicant did not attend a hearing before the delegate or provide additional documentary evidence to the primary decision-maker.
The application for review before the Tribunal was validly made on 11 March 2018. The applicant was invited to appear before the Tribunal on 8 January 2024. A further hearing was held before the Tribunal on 23 April 2024. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
For the reasons that follow, the decision should be affirmed.
BACKGROUND
The applicant was born in [Year], is of Chinese ethnicity, and identified his religion as Buddhism.
In October 2017, the applicant travelled to Australia on a valid Electronic Travel Authority (sub-class 601). In December 2017, the applicant applied for a protection visa. His protection visa application states that he has only ever resided at one address, the family home, in Perak, before arriving in Australia. He reiterated this evidence at the Tribunal hearing.
At the first Tribunal hearing, the applicant said that he had two brothers. [The first] brother lives in Australia, and arrived 2 or 3 years before the applicant. The applicant said that his brother has also made an application for a protection visa. [The second] brother is aged [Age] and lives in [Country]. His two parents continue to reside in the family home in Perak and are retired.
In Australia, the applicant has worked [in workplace]. He a gave evidence at the first Tribunal hearing that he had proactively sourced this work shortly after his arrival in Australia.
CLAIMS AND EVIDENCE
Before the Delegate
In his protection visa application, the applicant stated that:
·He is seeking protection in Australia so that he does not have to return to Malaysia.
·He left Malaysia because the Malaysian currency, the Ringgit, made him ‘suffer to survive’ and did not allow ‘Malaysians to have any sort of standing on an international level’. He stated that this did not seem like it would improve any time soon.
·If he was to return to Malaysia, his finances would not be in a stable situation.
The applicant did not provide information in his protection application in response to the questions regarding work history, qualifications, or family members.
Before the Tribunal
At the first hearing on 8 January 2024, the applicant provided oral evidence in support of his application for review. He called no witnesses.
I discuss the applicant’s oral evidence further below, where relevant. In summary, though, his evidence and claims are as follows. First, that he feared returning to Malaysia because of the financial hardship he would face. This hardship would be informed by multiple factors:
·Challenges finding employment for reasons of absence from Malaysia, age, ethnicity, and education.
·Any employment he might obtain would not provide sufficient income to meet his needs. In this respect, he raised:
oThat his income would be too low. In his case he expected that he would re-enter employment at an entry level salary whatever work he obtained – being, on his evidence, a salary of about $1,500 Ringgit per month and would be unable to re-enter employment at the rate of $3,000 Ringgit per month that he had previously earned before resigning from his previous job in Malaysia in 2016.
oThat generally the incomes available to many people, including Chinese Malaysians in Malaysia, are insufficient. In this respect, the applicant identified as an example that this means that people’s incomes do not allow them to buy cars or property. In his case, he would likely need to be able to buy a car to assist with his employment and he would be unable or find it difficult to do this.
oHis age, ethnicity, education level, and being out of the Malaysian workforce and the field of his former work in Malaysia, would all negatively affect his income;
oEven if his living expenses could be covered by his income, he would need to use his income to meet other costs being:
§Repaying a debt to a long-term friend of 20 years for money lent to him before leaving Malaysia (Malaysian friend debt).
§Repaying a debt to at least one other friend who is a Malaysian national, based in Australia, who lent him money in the context of a scam in Australia (Australian friend debt).
§Repaying a debt that his father owes to a bank in Malaysia (Father’s bank debt).
§Supporting his parents’ living expenses, now that his father is retired and is declared bankrupt.
§Making additional payments on behalf of his father because his father is bankrupt.
During the first hearing, the applicant also raised other matters which I consider I am obliged to also treat as claims for reasons I discuss further below. These are:
·That if he did not continue to repay the Malaysian friend debt at a frequency or rate that his friend found acceptable, it is possible that his friend might cause him some harm or harass his family.
·That he did not know what could happen if he did not repay the Australian friend debt.
·That he may be the subject of a violent attack because of his ethnicity or race, in certain circumstances. Relevantly ethnically Malay Malaysians had carried out racially motivated beatings against people from different ethnic, minority groups who had entered an area of town or district that was occupied by one ethnicity. In one case, a person had been killed in a situation like this. He also modified his behaviour to avoid issues. I discuss this claim further below.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the claims made by the applicant meet either the refugee or the complementary protection criteria. For the following reasons, I have concluded that the applicant does not meet either the refugee criteria or the complementary protection criteria, and the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australian on an apparently genuine Malaysian passport, a copy of which the applicant provided to the Department of Home Affairs. He has at all times stated that he is a citizen of Malaysia and has been assessed on the Minister’s delegate. I find that he is a citizen of Malaysia and have assessed his claims against Malaysia as his country of nationality and receiving country.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
Findings regarding outstanding debts
The applicant claims that he has multiple outstanding debts, which he will need to use at least some of the income he earns to repay if he is returned to Malaysia. At the first Tribunal hearing the applicant also raised the possible risk of harm to him if he did not repay the debts. Given the multiple ways in which the debts are said to inform the applicant’s life if he returns to Malaysia, I deal with these claims first. Ultimately, I do not accept that the Malaysian friend debt, the Australian friend debt or the Father’s bank debt exist as claimed.
On one view, these claims and evidence about the debts are new claims and evidence which have been raised by the applicant for the first time at the Tribunal hearing. This raises the prospect that s 423A of the Act requires me to infer that the claims are not credible unless I am satisfied there is a reasonable explanation for why the claim was not raised before the primary decision was made.
At the hearing I provided the applicant with an opportunity to explain why he had raised these claims for the first time before the Tribunal. He explained that he intended that his financial hardship claims raised in his protection visa application would encompass all the reasons his financial situation would give rise to harm including, though he didn’t expressly identify it, the debts he owed. I am satisfied this explanation is reasonable given the context in which his visa application and the delegate’s decision was made: 2 months after his arrival; without the assistance of a lawyer; prepared personally on the advice of a friend; and determined without a hearing before the delegate.
Nevertheless, I do not consider the claims are credible. In the case of each of the debts, the applicant’s evidence was vague, sometimes contradictory, and at times the applicant expressly stated he did not know crucial details relating to the debts. This includes:
a.In the case of the original quantum of the debts, the applicant initially gave a range of between 20,000 and 30,000 Ringgit. He later stated that the amount was $26,000 when I asked if he could be any more specific, but then ultimately stated that he was still not very sure what the amount owing was on the Malaysian friend debt and that all he can be sure of is that he now owes only one person money in Malaysia.
b.In the cases of both the Malaysia friend debt and the Australia friend debt, he accepted that he didn’t have a shared understanding with his friends of when he was required to pay it back or in what amounts. Ultimately, in the case of one of the debts the applicant ultimately explained that his friend had directed him at some point to just repay the amounts according to his current capability.
c.In the case of his father’s bank debt, the applicant’s evidence was that he didn’t know the amount of the debt (though it was a ‘large amount of money’), what the repayment arrangements were or what the consequences for his father would be for defaulting on the debt. Throughout the hearing the applicant raised that his father’s bank debt arose out of his father’s bankruptcy. However, his evidence was also that he didn’t know much about this bankruptcy either, except that he thinks it occurred before he left Malaysia. He accepted that the bank would not physically harm or threaten his father for defaulting on the repayments. His evidence was that he hadn’t consistently assisted his father to repay this debt to date, even though it was already pressing, but would need to on return, and that other family members also assisted with its repayment at different times, though they also didn’t know the details of the debt. His evidence was also that he did not know how the liability or consequences for this debt would flow to him if his father defaulted on the repayments or died.
There just is not the cogency, coherence, or detail for key and basic aspects of the debts for me to be satisfied these debts exist as claimed. I note the applicant has not provided any documentary support for any of the asserted debts. Further, while he has been living in Australia, the applicant’s evidence was that he had repaid his Malaysian credit card debt, which he said had been restructured by the bank in Malaysia. He identified he was concerned about the effect of the bank debt on his credit rating. By contrast, on his own evidence, the claimed debts to at least one of these friends remained outstanding with him just paying amounts when he could (though I note his evidence that he had repaid smaller debts to other unidentified friends in this time; the quantum of these individual debts was also not clear).
While I am prepared to accept that:
a.the applicant might have been given some funds to help him by his friends in Malaysia and Australia over time and that, as a friend, he wishes to repay any generosity of that kind; and
b.his father has asked for or the applicant wishes, as a son, to provide some kind of financial support to his father;
I do not consider that any of these amounts are debts which the applicant must pay or would be required by law or for fear of harm to repay in circumstances where making those repayments would compromise his own income to a degree he could suffer harm.
At an earlier point in the hearing, the applicant raised the presence of smaller debts to at least 4 other people in Malaysia. Later in his evidence he stated that he had discharged those debts. I do not consider a discharged debt could give rise to a chance or risk of harm to the applicant at all.
Findings regarding needing to support his parents’ living expenses
The applicant identified that his own financial circumstances would be affected by needing to support his parent’s living expenses, including because they are retired and because of the claimed bankruptcy his father has and the associated bank debt.
I do consider that the applicant will face a real chance or real risk of harm because of a need to support his parent’s living expenses. The applicant did not indicate that he would be unable to refuse to pay these amounts or that he could face harm for refusing or being unable to provide the funds (except in connection with the Father’s bank debt, which I am not satisfied exists – see above from paragraph ‎27. ). This is consistent with his experience in Australia which he stated has been that he has not regularly paid these amounts and his brothers also have provided his parents with financial support.
While I appreciate the applicant’s concern to provide financial support to his parents in their retirement, I do not accept that he would be at risk of harm or face a real chance of harm for refusing or being unable to provide this support. I do not accept that he would otherwise be required to support his parents with the effect that his income would be diminished to the extent he would be at risk of harm. The applicant did not assert, for example, that his own wellbeing or livelihood would be compromised were he unable to support his parent’s living expenses for any other reason than the Father’s bank debt.
Further, after having considered the very limited information before about me about his father’s bankruptcy (already referred to above in connection with the father’s bank debt), I am not satisfied that applicant’s father is bankrupt. In making this finding I have taken into account the applicant’s responses in the second hearing to my concerns regarding the paucity of evidence and detail in support of his claim that his father is bankrupt, including that:
a.He knows his father is bankrupt and paying money back to the bank.
b.He did try to ask permission for his father to go overseas but the Malaysian government would not let him go.
c.He wants to know more about the bankruptcy, but his father will not give him more information about it or evidence of it, and would not listen to his mother on the point. This is because, basically, he thinks his father does not want his children to know more about the bankruptcy.
d.As a result, he doesn’t have any further evidence to submit to the Tribunal.

Taking into account the limited information before me in support of the applicant’s assertion his father is bankrupt, as well as the lack of any other corroborating evidence that his father is known to be bankrupt, I am not satisfied that he is.
Findings on remaining financial hardship claims
There are a number of remaining aspects to the applicant’s financial hardship claims. Ultimately, I do not find that the applicant could either be at real risk of significant harm or that there would be a real chance of the applicant being seriously harmed through financial hardship. I explain why below. In reaching this conclusion I have considered the many factors raised by the applicant individually and cumulatively.
General economic conditions and the refugee and complementary protection criteria
Some aspects of the applicant’s financial hardship claims, including those in his protection visa application, relate to the personal impact of Malaysia’s currency and general economic situation on him if he was to return.
As I discussed with the applicant at the first hearing, to meet the refugee criterion for the protection visa the claimed persecution must be for an essential and significant reason of race, nationality, religion, membership of a particular social group or political opinion. The applicant’s claims regarding the personal impact of the generalised economic conditions in Malaysia do not meet the test for persecution because I do not accept that the applicant’s claims of this kind flow from any of these required reasons.
This finding affects the applicant’s claimed fears that:
·he cannot make his financial situation stable because of the general economic conditions in Malaysia including the cost of living in Malaysia when compared to the incomes generally available;
·that the currency in Malaysia will make him suffer to survive and that the Malaysian Ringgit is not able to allow Malaysians to have ‘any sort of financial standing on an international level’ at the moment and does not seem like it will improve any time soon; and
·that the economic conditions of Malaysia mean that for many people their income is insufficient, including being unable to buy things like a car or purchase property.
I also consider that these aspects of the applicant’s claims do not meet the complementary protection criteria for the protection visa. While I accept that a country’s general economic circumstances will have very real and personal implications for its citizens, I do not think that this can, of itself, affect the outcome of the protection visa assessment in this case. As the Full Court of the Federal Court held in GLD18 v Minister for Home Affairs,[1] in order to engage the complementary protection criteria, the harm that the applicant claims needs to be attributable to an actor.[2] The actor can be unspecified but nonetheless identifiable for the actions they are predicted to take.[3]
[1] [2020] FCAFC 2 (GLD19).
[2] GLD19, [31], [39]-[40], [46] (Allsop CJ and Moritmer J).
[3] GLD19, [40] (Allsop CJ and Moritmer J).
As I raised with the applicant at the first hearing, these aspects of his claims do not feature an actor or even protagonists of a general posture who will act or omit to act, contributing to his claimed harm. Accordingly, I do not find they meet the test for complementary protection.
I have, however, considered the general economic conditions in Malaysia to the extent they are part of the context for the applicant’s other evidence and claims regarding why he would experience financial hardship.
Unemployment because of age, ethnicity, educational standard and period away from Malaysia
At the hearing, the applicant claimed that there was a real chance he would be unable to find employment on his return to Malaysia. In addition to the general economic situation in Malaysia, the applicant referred to the following all as barriers to his obtaining employment:
·his age ([Age] currently);
·his lack of a tertiary qualification;
·his ethnicity; and
·his absence from the workforce in Malaysia since his departure.
Age
The applicant’s evidence was that at his age it would be very hard to find a job in Malaysia because employers would not see him as competitive. He explained that age as a barrier to employment was a long-term issue in Malaysia, that Malaysian employers prefer to hire people who are assumed to be more energetic, and as a result he would be seen as less competitive. He stated that the general trend in Malaysia is that the older you get the harder it is to find a job and that society thinks ‘we do not need older people’. He stated that he did have people around him of a similar age who had experienced this but did not elaborate. In this context, the applicant also said that it may be that his fears about not being competitive were just his own opinion.
I do not accept there is a real chance of serious harm or a real risk of significant harm to the applicant on account of his age (currently [Age]) either now or in the reasonably foreseeable future. Recent country information analysing income and unemployment data by age bracket in Malaysia strongly contradicts the claim. [4] In considering this country information, I have taken into account the applicant’s comments at the second hearing in response to my explanation of the trends identified in the country information being that people in his age bracket are highly employed and that they are not reported as being in low income brackets. Specifically, I have taken into account the applicant’s response that he is aware that there are reports to that effect, but that these reports are not comprehensive, and that there is a discrepancy in the basic salaries available to government (1,500 Ringgit) and private sector (1,200 Ringgit) employees. I do not consider that the reports referred to are uncomprehensive. The media reporting referred to relies on Salaries and Wages Survey reports prepared over multiple years by the Malaysian Department of Statistics. The unemployment statistics are published in a peer reviewed journal. Any discrepancy between basic salaries in the private and public sector does not change my assessment. I am also mindful that the applicant’s evidence was that he also found his age to be an issue when he obtained his [job task] role in 2010, which did not preclude him obtaining that employment.
[4] Department of Statistics Malaysia, Salaries and Wages Survey Report 2020 shows that the median monthly salaries of Malaysian’s in the age groups 44-49 2010-2020 are consistently part of the higher salaries in the country. In 2020, the age group 40-44 was the highest in terms of amount. See, Ida Lim, ‘Malaysians’ average, median salaries in 2020 fall for first time since 2010 to RM 2,933, RM 2,062’ Malay Mail (online). Unemployment rate analysis by age group shows the age group 40-54 being consistently one of the age brackets affected least by unemployment and below the national unemployment rate. See, Figure 1 in Robiaatul Adawiah Edrus et al, ‘Econometric Analysis of Macroeconomic to Age-Specific Mortality Rate in Malaysia: Evidence from Panel Data’ Journal of Mathematics (2022), 4.
In these circumstances, I do not accept that the applicant would face a real chance or risk of unemployment as a result of his age, or that there is a risk or chance this could lead to harm for him.
Education
I also do not accept that the applicant’s lack of a degree would mean he could not obtain employment. He completed secondary school and began, but discontinued, tertiary study. His continuous employment history in Malaysia before travelling to Australia, most recently in a role for six years before he voluntarily resigned, strongly indicates his education has not been a barrier to his employment in the past. As I also raised with the applicant at the second hearing, recent Malaysian government data indicates that people with only secondary qualifications have high employment in Malaysia.[5] In this context I have considered, again, the applicant’s responses in the second hearing to the implications of this data. However, I do not accept that the report is uncomprehensive; it reflects a wide-ranging data collection exercise by the Malaysian government.
[5] The Malaysia Department of Statistics Labour Force Market Participation Report (Q1/2022) states that by educational attainment, employed persons with secondary education recorded the highest share of 56.1 per cent (8.74 million persons) [of all employment in Malaysia]. See,
On the material before me, I do not accept that the applicant’s employment prospects would be compromised in Malaysia on account of his education. I find his education would not be a barrier to employment. I do accept that, as is common, some types of employment and roles may require a relevant degree as a pre-requisite. I do not think, however, that this issue would prevent him being employed in a way that could give rise to a risk or chance of serious or significant harm to him.
Time away from Australia
I also do not accept that his time away from Malaysia in Australia would mean that he would be unable to obtain employment. The applicant’s evidence is that he has been employed in Australia and that he was employed with a single employer for a long duration in Malaysia prior to his travel to Australia, receiving increases to his salary over time. The applicant did not develop his evidence that his residence in Australia would be an issue in any greater detail. There is no other evidence before the Tribunal that suggests that there are major employment barriers in Malaysia for residents returning to the country who have worked overseas for a period of time. On the information before me, I do not accept it could mean that the applicant is unable to obtain employment.
Ethnicity
In relation to his ethnicity, the applicant also raised that Chinese Malaysians experience discrimination in gaining access to university places and in employment. He recounted his Uncle’s experience in being rejected for tertiary study despite achieving higher entry scores than the ethnic Malaysian students who were accepted. He also recounted his own experience of leaving his tertiary study unfinished because he was not able to afford the fees. I accept the applicant’s evidence that racial discrimination exists and would have some impact on his employment in Malaysia. However, I do not accept there is a real chance or real risk it could rise to any level that could see him unable to obtain employment, or raise a real risk or real chance of harm to him in Malaysia now or in the reasonably foreseeable future.
As I discussed with the applicant at the first hearing, while the DFAT Malaysia Country Report identifies that while Chinese Malaysians will experience ‘low levels of official discrimination’,[6] the overall picture in Malaysia despite this is that Chinese Malaysians experience the highest employment rates in the country.[7] Further, while there is discrimination in relation to hiring and promotion in the public service (which I accept) Chinese Malaysians are prominent and well-represented in private business.[8] I also raised with the applicant other statistics that speak to a similar reality for Chinese Malaysians, including the report by the Malaysian government in 2023 that the absolute poverty rate in Malaysia was 1.4% for Chinese communities compared with an overall absolute poverty rate of 5.6%.[9]
[6] DFAT Country Information Report - Malaysia, 22.
[7] DFAT Country Information Report – Malaysia states (at 11) that in November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 percent for Bumiputera, and 2.4 per cent for Chinese Malaysians.
[8] DFAT Country Information Report - Malaysia, 21-22.
[9] See, Ahmad Mustakim Zulkifli, ‘Most hardcore poor from Bumiputera community, says Rafizi’ Malaysia Now 7 March 2023 (Online).
I have taken into account the applicant’s comments at the first hearing to the effect that these statistics are pitched at a high level of generality and that the experience of all Chinese Malaysian residents is not the same, and that different households have different situations including that in his household his parents are both retired and his father is bankrupt (though I have not accepted that his father is bankrupt), and he would be returning to seek employment in a more rural area without a degree. And, to the extent that it is relevant, I have also considered again the applicant’s points at the second hearing regarding what he said was a discrepancy between public and private sector basic salaries.[10]
[10] Given the country information cited in this decision in the DFAT Country Information Report regarding positive discrimination in the public sector in favour of Bumiputera (with necessary adverse low-level effects for Chinese and other ethnicities in Malaysia).
However, even accepting that the experience of all Chinese Malaysian residents are not the same, and that national figures do necessarily smooth individual differences, even the applicant’s own employment experiences in Malaysia indicate that his ethnicity has not previously prevented him from obtaining employment. Prior to leaving Malaysia the applicant gave evidence in the Tribunal hearing that he was employed full time as [an occupation] in his home area. His evidence was he held the role for 6 years until he resigned from the position because he was not happy with his rate of pay (which he said was $3,000 Ringgit per month at that point, double the current minimum wage in Malaysia[11]). He obtained this role initially via introduction of a friend. Prior to this he was employed doing ‘odd jobs’. I do not consider against the background of the broader country information and with reference to the applicant’s own past experiences in Malaysia that his ethnicity could have any real chance or present a real risk of him not obtaining employment such that he could experience serious or significant harm. Any difference in basic salaries in the public and private sector does not change my assessment.
Not having a car
[11] Ameer Fakhri, ‘Government to review minimum wage this year, says HR Minister’ Free Malaysia Today 14 March 2024. Online: >
For completeness, I confirm that I have also considered the applicant’s claim that he will require a vehicle to find work. On the basis of the very limited information before me in support of this aspect of the applicant’s claim and against the background of the country information referred above regarding rates of employment in Malaysia, I do not consider that owning or not owning a car could be determinative of the applicant’s employment prospects, or ultimately that if he did not own a car this would give rise to a real chance or a real risk of serious or significant harm.
Conclusion on facts related to unemployment claims
For the above reasons when considered individually and cumulatively, I find that there is no real chance of the applicant experiencing serious harm arising from unemployment in Malaysia, nor is there a real risk of him experiencing significant harm arising from the same claimed unemployment. In reaching this conclusion I confirm I have taken into account the applicant’s responses, including as identified above, and his general responses to the country information regarding Malaysia’s economic conditions more broadly which included his views that he totally disagrees that the economic position in Malaysia (as reflected, for example, in the DFAT report) has improved or is as reflected in that information. I have preferred the country information on these points.
Low income
At the hearing, the applicant claimed that, even if he could obtain employment, it would be insufficient to meet his living costs. The applicant did not articulate in a consistent way what harm this insufficiency might cause him. As referred to above, in his protection visa application the applicant referred to ‘suffering to survive’, throughout the hearing the applicant referred to ‘living well’, ‘meeting his living expenses’, and the ability to buy property or a car. The applicant also identified in his evidence that he expects that he would be ‘starting again’ when he returned to Malaysia and so would only expect to earn the minimum wage if he returned.
The applicant also raised that the same the factors he claimed would lead to his unemployment (age, ethnicity, educational standard, and time away from Malaysia) could lead to him experiencing harm as a result of a low income.
Ultimately, I do not accept that the applicant’s income on return to Malaysia would be so low that he would be at risk or face a chance of serious or significant harm for any of the claimed reasons.
First, this is inconsistent with his past experiences of employment in Malaysia (where his leaving salary was double the current minimum wage, see above).
Second, as I raised with the applicant at the hearing, his claims related to his income are at odds with the picture in the country information before me. DFAT reports that Malaysia has a low absolute poverty rate,[12] and in March 2023, a Minister of the Malaysian government reported to the Malaysian Parliament that the absolute poverty rate for Malaysia was 5.6 per cent. The poverty rate for Chinese Malaysians specifically was much lower again at 1.4 per cent.[13] As I raised with the applicant at the second hearing, recent income data by age bracket in Malaysia also indicates that people in the applicant’s age bracket are not identified as being in a low income bracket.[14] And, the country information before me also indicates that people of his educational standard have high levels of employment and are also not reported to fall into a low income bracket.[15] I am not satisfied that the applicant’s age, educational level or ethnicity raise any chance or risk of him experiencing serious or significant harm in Malaysia now or in the reasonably foreseeable future.
[12] DFAT Country Information Report – Malaysia, 11
[13] Insert reference.
[14] See, Ida Lim, ‘Malaysians’ average, median salaries in 2020 fall for first time since 2010 to RM 2,933, RM2,062’ Malay Mail 14 July 2021. (Online: Relevantly, the median monthly wage reported at 2020 was RM2,062, while workers in the 40-44 age bracket sat at RM 3,028; the 40-44 age group was also the highest in the country when surveyed for the relevant government report; and despite the reported drop in median and average salaries that year the 40-44 age group did not experience a median wage drop.
[15] The implication of Malaysia’s low absolute poverty rate (cited already) with the recent data indicating the very high rates in Malaysia’s employed population of people with only a secondary qualification, is that the applicant would not experience any real risk or chance of financial hardship on account of having only completed secondary education. See data footnoted at fn 5.
I also do not accept that his having been out of the specific field of employment he was in previously in Malaysia will mean there is a real chance or a real risk of him experiencing a low income sufficient to give rise to serious or significant harm. There is very limited evidence before me in support of this claim. He would not, as already discussed above, be returning with a substantial break in his employment completely. Rather, he would be returning as someone who has been working in Australia, albeit in a different industry. I do not consider this shift would be sufficient to jeapordise his income to the degree he asserted or to give to rise to a real chance or real risk of serious or significant harm.

In considering the country information referred to above, I have again taken into account the applicant’s response to the picture in the country information – including that these figures are all average numbers, that different households have different situations and that, in his experience, the disparity between rich and poor in Malaysia is still quite big. Also, that his particular household is one where his parents are both retired and his father is bankrupt (though, as set out above, I do not accept that he is required to provide for his parents in the sense that not doing so could lead to a risk of harm to him for any reason, or that his father is bankrupt). I have also considered the applicant’s comments at the second hearing that reports as to the income and employment prospects of people his age, education level, and ethnicity are not very comprehensive. For the reasons given above, however, I consider the sources to be reliable and I prefer them. Any difference in basic salaries in the public and private sector, as raised by the applicant, also does not change my assessment.
Considering the totality of the material including the applicant’s past experiences in Malaysia and the wage information specific to his ethnicity, age and level of education, I consider he will not be at risk of harm or face a real chance of harm due to a low income in Malaysia now or in the reasonably foreseeable future.
Finally, as I raised with the applicant at the first hearing, even if he was to experience a low income which might otherwise put him at risk of harm (which I do not accept), I consider that Malaysia’s welfare system would provide an albeit modest support payment to him. DFAT reports that financial assistance from the Department of Social Welfare is available to households whose income is below the poverty line, but differs across states.[16] Further, the Department is reported to provide financial support to (relevantly) the economically disadvantaged and otherwise vulnerable.[17] In this context, I have taken into account the applicant’s response that in the past only ethnically Malay Malaysians have had access to welfare in Malaysia and that Malay people are still prioritised, though he later stated that welfare is now available to all ethnicities. As identified above, I have preferred the country information on this point and I find the applicant would receive the government financial support referred to.
Conclusion on facts related to low income claims
[16] DFAT Country Information Report – Malaysia, 43.
[17] Ibid, 51.
For the above reasons when considered individually and cumulatively, I find that there is no real chance of the applicant experiencing serious harm arising from a low income in Malaysia, nor is there a real risk of him experiencing significant harm arising from the same claimed low income.
Refugee assessment regarding financial hardship and financial obligations
I do not consider that the applicant meets the refugee criterion on the basis of any of his financial hardship-related or claims regarding financial obligations to debtors or his family.
For the reasons already outlined above I have found that:
a.The applicant does not have any debts that he must repay;
b.The applicant does not have to provide financial support to his parents to avoid harm or for any other reason including because of the claimed father’s bank debt or bankruptcy;
c.The applicant’s father is not bankrupt;
d.The applicant would not face any real chance of being unemployed on return to Malaysia; and
e.The applicant would not face any real chance of harm on account of his income being low, and that the Malaysian welfare system would provide him a modest payment if (for some reason) he became economically disadvantaged.
Accordingly, I do not consider there is any real chance of serious harm to the applicant for any of the reasons he has claimed either individually or cumulatively arising from unpaid loans, his father’s bankruptcy, obligations to support his family or his wage or employment in the context of the Malaysian economy.
Further, to the extent that the applicant’s claims relate to the general economic conditions in Malaysia, these claims also cannot satisfy the refugee criterion for the reasons already identified above from paragraph ‎37.
Complementary protection assessment regarding financial hardship and financial obligations
I do not consider that the applicant meets the complementary protection criteria on the basis of any of his financial hardship-related or claims regarding financial obligations to debtors or his family.
Having made the findings of fact summarised above at paragraph ‎67. and for the reasons set out earlier in this decision, I do not consider that there are 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 the applicant will suffer significant harm.
Further, to the extent that the applicant’s claims relate to general economic conditions in Malaysia, these claims cannot satisfy the complementary protection criterion for the reasons already set out above from paragraphs ‎40 to 41.
Findings and assessment regarding claims of racially motivated violence by ethnic Malaysians against Chinese Malaysians
During the final period of the hearing, the Applicant raised an additional matter with the Tribunal regarding racially motivated violence by ethnic Malaysians in unspecified neighbouring areas to his home. At the end of the hearing, he explained that he didn’t intend to mention this at the hearing and that he didn’t think this harm would happen to him. However, during the hearing the applicant also said that he could try to avoid any harm happening to him of this kind by avoiding ‘accidents’ and not making mistakes such as entering these areas and that this was part of his ‘general situation’. He also said ‘I’m not saying I’m not fearful of that’. Given the applicant’s mixed comments, I cannot be satisfied that the applicant had abandoned this claim and I consider it has been squarely raised by his evidence, requiring me to consider it.
There is very limited evidence from the applicant regarding this claim. The applicant’s evidence was that:
a.Racial discrimination in rural Malaysia is quite severe and more severe than in more metropolitan areas.
b.It is a possibility that if he went past an area that ‘belongs to’ ethnically Malay Malaysians they may pull him out of public transport and beat him.
c.It is ‘just a possibility’ that if he walked past an area or road that is occupied by ethnically Malay Malaysians he will be beaten.
d.Ethnic groups in his area live in distinct areas. If there is a road accident in an area occupied by ethnic Malay Malaysians (regardless of who is responsible), there is a possibility that he will be harmed.
e.He avoids increasing his risk of harm from racial discrimination by trying not talk about sensitive topics – such as race relations and political opinions. He did not explain what he thought would happen if he did not avoid discussing these topics.
f.There was news that reached him about a person being beaten to death for going past an area that was not their ethnic area. However, there is not public reporting of this because it was covered up.
g.Cases like this have happened before. They are covered up.
Section 423A inference
These claims were raised by the applicant for the first time at the Tribunal hearing. In recognition of the operation of s 423A of the Act, I gave the applicant an opportunity to explain why he had not raised this evidence until after the primary decision. The applicant stated that the people who had assisted him to complete his protection visa application had mentioned to him that if he raised these type of sensitive topics the Malaysian government may become aware of it.
For the purposes of s 423A of the Act, I am satisfied that there is a reasonable explanation for the initial omission of the claim, informed by caution from the people assisting him to complete the form to avoid what the applicant called ‘sensitive topics’. This was misinformed but I accept this to be a sufficient explanation. I also observed that this evidence was responsive to being informed of the refugee criteria in a concrete way during the hearing, in the context of the applicant being previously unrepresented by a lawyer and his limited knowledge of the protection visa criteria before this. I do not consider s 423A requires me to infer the claim is not credible.
Past events narrated by the applicant
I do not accept that a person was beaten to death for entering an occupied area by ethnically Malay Malaysians, but that it was covered up, explaining a total absence of reporting about it. This is because:
a.the applicant’s evidence was brief and reflected, even on his account, retelling a story he had heard from someone else;
b.there is no documentary evidence before me about the particular event at all;
c.there is not information before me to corroborate the applicant’s bare assertion that an elaborate cover up occurred in the context of a racially informed or motivated killing;
d.there is not material before me to corroborate the applicant’s bare assertion that extreme violence by non-state actors is covered up, in circumstances where the DFAT Country Information report for Malaysia details other risks for citizens;
e.I am not satisfied on the information before me, including the absence of any supportive country information on the topic in the material, that beatings to death or other extreme violence occurs in Malaysia where a person enters a distinct area where members of one ethnic group reside or which they ‘occupy’; and
f.the DFAT Country Information Report does not identify issues in Malaysia where serious, racially motivated attacks by non-state actors occur or where attacks or racial violence are covered up and go unreported, despite detailing other risks for citizens and devoting analysis to race relations and the situation of Chinese Malaysians.
I also am not satisfied that the other past events raised by the applicant as happening to others, including being pulled out of public transport or being beaten in a ‘Malay occupied area’ for travelling through it. I don’t accept that these events occurred either in his home area, neighbouring areas or elsewhere in Malaysia. The applicant provided very little detail about them and I am not satisfied on the information before me (which also does not corroborate them) that they occurred. For the reasons already given in relation to the claimed beating to death, I don’t accept that the paucity of information available about these past events is explained by the events having been covered up.
For the reasons discussed further below, I also do not accept that there are ethnically occupied where entry by another ethnicity gives rise to a risk of harm.
Could the applicant face a real chance of serious harm for reasons arising from racialised violence in Malaysian now or in the reasonably foreseeable future?
I do accept that some tension exists between ethnic groups, including between ethnically Malay and Chinese Malaysian citizens like the applicant.
Turning to the country information, DFAT reports that ‘race has always been a fault-line in Malaysian politics and society’ and that ‘increased political instability at the national level has led to greater competition for Malay nationalist vote and increased sensitivity around race issues’.[18] In 2020, at least, I accept that ‘Malaysia bore witness to race-baiting statements by senior politicians’.[19] I am prepared to accept that this has continued. I am also prepared to accept that violence occurs in Malaysia generally and that there are isolated or random incidences where violence is racially informed, including against Chinese Malaysians. And, I accept (as the DFAT Country Information reports) that:
a.Chinese Malaysians report that many families are unable to live in rural areas due to lack of economic opportunity[20] (though across the country they comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia[21]).
b.Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.[22]
c.In August 2019, the Malaysian Communication and Multimedia Commission (MCMC) opened a channel to receive complaints from the public regarding social media posts considered ‘insensitive’ relating to ‘race, religion and royalty’. According to one source, the MCMC received more than 20,000 complaints in the first six weeks of operation with actions taken against 259 complaints received and 80 per cent of the complaints concerning racism.
[18] DFAT Country Information Report – Malaysia, 20.
[19] Ibid, 20.
[20] Ibid, 22.
[21] Ibid, 21.
[22] Ibid, 22.
As I raised with the applicant at the first hearing, though, what is absent from the country information before me, however, is an indication that the low levels of discrimination detailed in the DFAT Country Information report are accompanied by any real chance of racial violence amounting to serious harm to a person in the applicant’s position. This includes (but is not limited to) as a Chinese Malaysian who may travel through one part of Malaysia to another, or who may speak about sensitive topics such as race and political relations in Malaysia concerning Malay, Indian and Chinese citizens or their rights.
I note that I have accepted that violence occurs in Malaysia and that there may be isolated or random incidences where violence is informed or even driven by racism. However, I do not consider that the mere possibility of a random, isolated, event occurring again in Malaysia is sufficient to give rise to a real chance of serious harm to the applicant.
I am prepared to accept, for the purpose of analysis, that there are residential areas in the applicant’s home area or in adjacent areas that are unofficially distinguished by ethnicity in the sense that communities of people sharing the same ethnicity live close to each other. For the reasons already identified above, however, I do not accept that there are areas which are ‘no-go’ or prohibited ‘occupied’ ethnic areas or that there is a risk of serious violence to a person not of that ethnicity who may enter them. There is also no indication that the specific kinds of violence that the applicant identified as being possible have occurred in the past, or that they will occur again.
To be clear, I am also not satisfied that even if the applicant were to discuss race relations and politics, he would face a real chance of serious harm. While I appreciate the applicant may have that concern, I do not consider the information before me demonstrates that the chance of this exists. I also do not accept that his self-censorship in not discussing difficult topics is responsive to a real chance of serious harm on this basis.
For the above reasons I do not accept that there is a real chance of serious harm to the applicant from racialized violence in Malaysia now or in the reasonably foreseeable future. Accordingly, I do not consider that the applicant meets the refugee criteria for the protection visa.
Could the applicant face a real risk of significant harm arising from racialised violence in Malaysia?
I do not consider that there are substantial grounds for believing there is a real risk the applicant will experience significant harm if he is returned to Malaysia.
I have already found above that claimed past violent events did not occur, and were not covered up. As already described above, these kinds of events and this kind of cover up of serious violence by non-State actors are absent from the DFAT Country Report, despite this report providing comment on other low levels of discrimination in Malaysia against Chinese Malaysian people like the applicant and Malaysian race relations. There is a paucity of detail before me on the event, or that supports any of the context for the claimed event (including about ethnically occupied areas and the claimed risks for other ethnicities in these areas; or about cover ups). On the material before me, I am not satisfied that it occurred. I am also not satisfied that events like it have occurred.
I am prepared to accept, for the purpose of analysis, that there are residential areas in the applicant’s home area or in adjacent areas that are unofficially distinguished by ethnicity in the sense that communities of people sharing the same ethnicity live close to each other. I am also prepared to accept that violence occurs in Malaysia and that there are isolated or random incidents where violence is racially informed or driven. I have also accepted that low levels of discrimination occur in Malaysia against Chinese Malaysian citizens and the related matters set out above at paragraph 80.
However, on the material before me and taking into account the totality of the matters I have accepted, I am not satisfied that there is a real risk to the applicant of the harm he claimed to fear or any of the forms of significant harm exhaustively provided for by s 36(2A) of the Act. I do not consider there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm, as defined.
CONCLUSION
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hollie Kerwin
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 2178

13 May 2024

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