1810820 (Refugee)

[2023] AATA 4586

1810820 (Refugee) [2023] AATA 4586 (15 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810820

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:15 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 15 November 2023 at 10:13am

CATCHWORDS
REFUGEE – protection visa – Malaysia – decision on the papers – economic harm – low education level – difficulties finding a job – loan sharks – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 8 January 2018. The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia.

3. The applicant was invited to appear before the Tribunal on 24 November 2023 to give evidence and present arguments. In his response to hearing invitation dated 13 November 2023, the applicant stated that he would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. Elsewhere in that form he stated that there was no issue that may affect his ability to take part in a hearing and that he did not intend to rely on any documents or ask the Tribunal to take evidence from any witnesses.

4. In these circumstances, the Tribunal considers it appropriate to determine the review without a hearing in accordance with s 425(2)(b) of the Act.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

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

    The applicant’s personal background

13. The applicant has completed two protection visa application forms, the first of which was found by the Department to be an invalid application as the applicant did not pay the application fee.

14. Those applications indicate the applicant is a [age] year old male from Pahang, Malaysia. He states that both his parents are Malaysian citizens and that he lived in a single address in [Town 1], Pahang from the time of his birth until his departure from Malaysia.

15. He is of Chinese ethnicity and Buddhist religion. He states he has a sister who remains in Pahang, Malaysia and he states he commenced a de facto relationship in March 2016 in Australia.

16. The applicant provides no details of any employment in Malaysia. He states that he has been unemployed since arriving in Australia in July 2016 and that he is financially supporting himself from his savings.

17. The delegate’s decision records that the applicant arrived in Australia [in] March 2016 as the holder of an electronic travel authority valid [until] June 2016 and lodged the first application for a protection visa on 10 July 2017. That application was deemed by the Department to be invalid and the applicant lodged a second application for a protection visa on 8 January 2018.

    The applicant’s claims for protection

18. As noted above, the applicant has completed two protection visa application forms after the first was found by the Department to be an invalid application.

19. In the first protection visa application, the applicant claims that he left Malaysia after experiencing financial hardship and difficulties finding a job. He states that didn’t finish high school because of his family’s financial problems and so he decided to come to Australia to [work]. If he returns to Malaysia, he believes he will become jobless which will make his survival difficult. His family will be unable to support him as they are also in financial hardship. The main reason he came to Australia was to support his family in Malaysia while also covering his own expenses in Australia. He feels humiliated and ashamed because of his educational background which makes it hard for him to find a suitable job and has resulted in his mistreatment. He had no choice but to borrow money from a friend to come here where he is able to support his family and return some money to Malaysia. He does not believe any charity or institution in Malaysia can help him. He feels pleased and happy to be in Australia because he can earn money to cover all of his expenses.

20. In the second protection visa application, the applicant claims that his father was a gambling addict who left the applicant with debts of RM 120,000. He claims that he tried to clear the debts but could only pay the interest and the debt kept increasing. His father had taken out loans from six illegal loan sharks and it was impossible for the applicant to repay the debts, causing him to lose his car and all his assets. Some of the loan sharks beat him when he was late on the payments. He claims that [in] February 2016, he was walking home from work when he was attacked by men who told him they were looking at him because of his father’s debts which now totalled RM 53,000. They beat him badly and threatened to kill him if he failed to pay the amount. He was so terrified that he decided to flee the country. If he returns he will be killed by the illegal loan sharks. He sought help from his siblings and his late father’s siblings but they were selfish and didn’t want to help him or get involved. He did not try to relocate because the illegal loan sharks had their people everywhere and would be able to find him wherever he goes. They threatened him that he should not tell the authorities and they will kill him if he does so.

21. On 21 March 2023, a delegate decided to refuse the applicant the protection visa, considering that the harm feared by the applicant was not for reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a) and therefore the applicant did not come within the definition of a refugee. In relation to complementary protection, the delegate considered that country information indicated the Malaysian authorities are reasonably effective in combatting illegal money lending and that the applicant could obtain protection from the Malaysian authorities such as there would not be a real risk he would suffer significant harm.

    The review application

22. On 17 April 2018 the applicant lodged with the Tribunal a copy of those pages of the second protection visa application that record his reasons for claiming protection. He has otherwise provided no additional information to the Tribunal.

23. The department’s file indicates the applicant was not interviewed by the department. As set out above, the applicant did give evidence to the Tribunal, advising the Tribunal that he would not attend the hearing and wished the matter to be determined on the papers.

    Claims of economic harm

24. In the first visa application form, the applicant claims in essence that he will experience economic harm if returned to Malaysia as his relatively low education level will make it difficult to find suitable employment to support his family who are also experiencing financial hardship.

25. The Tribunal accepts that the applicant did not complete high school and that he is ashamed of his educational background. The Tribunal accepts that his level of education restricts his employment opportunities and earning capacity. The Tribunal accepts that his earning capacity is higher in Australia that it is in Malaysia and allows him to support himself here as well as sending money back to Malaysia to support his family.

26. However nothing in the material before the Tribunal suggests that the essential and significant reason for the economic difficulties experienced by the applicant arise from his race, religion, nationality, political opinion or membership of a particular social group. For this reason, the economic harm feared by the applicant on return to Malaysia does not meet the criteria set out in s 5J(1)(a) of the Act. It follows that the applicant does not meet the definition of a refugee set out in s 5H and therefore he cannot meet the criteria set out in s 36(2)(a) of the Act.

27. ‘Significant harm’ is exhaustively defined in s 36(2A) (set out at the end of this decision). The applicant does not suggest that he will be tortured or subject to the death penalty if returned to Malaysia. The definitions of arbitrary deprivation of life; cruel or inhuman treatment or punishment and degrading treatment or punishment each require the harm or punishment be intentionally inflicted on a person. In the first visa application that sets out the applicant’s economic claims, the applicant does not suggest that any person or group are intentionally seeking to harm him. He makes brief reference to ‘mistreatment’ arising out his educational background but provides no details of that mistreatment.

28. On the basis of the very limited evidence available to it, the Tribunal is not satisfied that the economic harm feared by the applicant would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, or degrading treatment or punishment. For these reasons the Tribunal does not accept that economic harm comes within the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A). It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

    Claims to fear harm from loan sharks in Malaysia

29. In the first visa application form, the applicant claims to fear harm from loan sharks to whom he owes money in Malaysia. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed, rather it is for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

30. The applicant has provided no explanation as to why his claims for protection differ so markedly between the first and second visa application forms. In the first visa application he makes no mention of debts he owes to money lenders arising out of debts incurred by his late father, nor of the beatings he claims to have suffered in the second visa application. Rather as noted above, the applicant states in the first visa application form that his problems in Malaysia relate to his difficulty in finding suitable employment because of his low education level.

31. As well, the applicant has provided little meaningful detail about his claims to owe money to loan sharks. He has not named the loan sharks he claims to owe money, nor the people whom he claims beat him and threatened to kill him prior to his departure from Malaysia. Had the applicant attended the hearing, the Tribunal would have asked him about timing and size of debts taken out by his father and the amount of debt, it any, still owing. The Tribunal would have asked the applicant why the loan sharks hold his responsible for his father’s debts rather than his siblings or his father’s siblings. The Tribunal would have discussed with the applicant what steps he took to protect himself from the loan sharks and the timing and nature of the harm he claims to have experienced at their hands.

32. On the extremely limited evidence before it, the Tribunal is not satisfied that the applicant’s father incurred gambling debts, nor that those debts were transferred to the applicant upon his father’s death. The Tribunal is not satisfied the applicant has in the past experienced harm from his father’s debtors, nor that there is a real chance that he will face harm from those people if he returns to Malaysia in the reasonably foreseeable future. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution from loan sharks pursuant to s.5J(1) of the Act. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

33. In considering whether the applicant meets the complementary protection criteria set out in s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Malaysia, there is a real risk he will suffer significant harm.

34. For the reasons set out above, the Tribunal is not satisfied there is a real chance the applicant faces harm from his father’s debtors or any other person or group if he returns to Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[1] It follows that the Tribunal is not satisfied that 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 that the applicant will suffer significant harm.

    [1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

    CONCLUSIONS

35. 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).

36. 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).

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

    DECISION

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

    Alison Murphy
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …