1819856 (Refugee)

[2024] AATA 2628

1819856 (Refugee) [2024] AATA 2628 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819856

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Kathleen Timbs

DATE:20 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2024 at 10:23am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – older woman – economic conditions – family care commitments – employment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

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 to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (the Act).

2. [In] March 2017, the applicant entered Australia from Malaysia.

3. On 19 April 2018, the applicant applied to the Department for a protection visa.

4. On 3 July 2018, the Department notified the applicant that the delegate had refused to grant the visa.

5. On 8 July 2018, the applicant applied to the Tribunal for review of that decision.

6. The Tribunal heard the application for review on 6 June 2024. The applicant and a witness attended the hearing in person and gave evidence with the assistance of an interpreter in the Mandarin and English languages.

   RELEVANT LAW – CRITERIA FOR A PROTECTION VISA

7. The relevant criteria for a protection visa are in s 36 of the Act.

8. To be granted the visa, an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they must be either a person in respect of whom Australia has protection obligations because they meet the refugee criterion or complementary protection criterion, or they must be a family member of a person who meets one of those criteria and that person holds a protection visa.

9. 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 applicant is a refugee (the refugee criterion). 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 are unable or unwilling to avail themselves of the protection of that country because they have a well-founded fear of persecution (s 5H(1)(a)).

10. 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. Sections 5J(2) 6) and 5K–LA set out additional requirements relating to a ‘well-founded fear of persecution’ and the circumstances in which a  person will be taken not to have such a fear.

11. Section 36(2)(aa) provides that a criterion for a protection visa is that the Minister is satisfied Australia has protection obligations in relation to the applicant because they have 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 they will suffer significant harm (the complementary protection criterion). Section 36(2A) and (2B) sets out the definition of significant harm and circumstances in which a person will be taken not to face a real risk of significant harm.

12. The issue for the Tribunal to determine in this case is whether the applicant meets either the refugee or complementary protection criteria for a protection visa. If that is not the case, the Tribunal must affirm the decision to refuse to grant the visa. 

    EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL

13. In accordance with Ministerial Direction No.84, the Tribunal considered the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs and the DFAT Country Information Report Malaysia published on 29 June 2021 by the Department of Foreign Affairs and Trade to assist protection status determinations.

14. The Tribunal also considered:

    ·relevant documents provided by the Department, including the applicant’s visa application and the delegate’s reasons for decision;

    ·oral evidence and submissions made at hearing by the applicant and her witness, [Witness A]; and

    ·additional country information discussed below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

15. The applicant provided a Malaysian passport as proof of identity and nationality to the Department. The Department found it was genuine and the Tribunal is satisfied the applicant is a Malaysian national on that basis. It has no evidence suggesting the applicant has a right to reside in any other country and finds that Malaysia owes protection to the applicant as one of its citizens and is the ‘receiving country’ for s 36(2)(aa) in this case.

    Applicant’s background

16. The applicant was born in [specified year] in Sarawak. She told the Tribunal she grew up with her mother, father and [siblings] in the family home in [Town 1] in Sarawak which is a town of approximately [number] residents in the west of the island of Borneo. She told the Tribunal that its main industries are [produce] production.

17. The applicant completed primary school and has no other formal educational or trade qualifications. After primary school, she worked on a [farm] owned by her family until she married at [specified age].

18. The applicant continued to live in [Town 1] with her husband after their marriage. They lived in a home that they own with his mother and had [number] children born between [specified years].  One of their daughters is married and lives with her husband in [Town 1]. The other children moved to [Country 1] to find employment after finishing their studies. Her husband continues to live in the family home in [Town 1] with his mother.

19. The applicant’s husband had regular employment in retail throughout their marriage and supported the family financially. The applicant did not work outside the home until she came to Australia.

20. The applicant has an intact relationship with her husband who stopped working two or three years ago to care for his mother.

    Claims for protection

21. The applicant told the Tribunal she paid a friend to fill out her visa application. It states that she did not suffer harm in Malaysia. Rather, it refers to economic instability in the Malaysian economy following the introduction of a goods and services tax (which applied from 2015 to 2018). It states she left Malaysia because she could not meet her monthly expenses from her income.

22. The applicant told the Tribunal one of her children married in 2018 and the other [children] were still at home and studying. She said she and her husband could not support them from her husband’s wages and meet other monthly expenses, such as home and car loans after the introduction of the GST. She said she decided to come to Australia so that she could work and contribute enough for the family to survive.

23. The applicant said the children do not contribute significant amounts to the household and she is supporting her husband and his mother from her income. She told the Tribunal it would be difficult to find work if she returned to [Town 1] because it is a small town in a rural area with limited employment opportunities for an older woman with no qualifications. She told the Tribunal this would also be the case in all areas of Malaysia, including in large cities such as Kuala Lumpur. She said she would like to remain in Australia and continue working so that she could save up enough money to live independently from her children as she and her husband got older. She said her children are not able to contribute to her expenses and those of her husband and that she would not recieve welfare payments from the state or federal governments.

24. The applicant firstly told the Tribunal her husband was not working because he had to care for his mother. The Tribunal asked the applicant if her husband could return to work and meet the household expenses so she could take over the care of his mother. She initially said that she did not know because she had not discussed the possibility of him returning to work. She then told the Tribunal that he could not return to work because she refuses to care for his mother because she is very critical. She said her mother-in-law would refuse care from her. She submitted that having to care for her mother-in-law would amount to serious harm because of the conflict between them. The Tribunal suggested the difficulties she would face caring for her mother-in-law might not amount to the kind of harm that is so serious that she would meet the definition of a refugee. The applicant then told the Tribunal her husband cannot work because his doctor advised him to stop work because he is at risk of stroke because of high blood pressure and because of another condition that she could not name. The other condition causes [specified symptoms].

25. [Witness A] told the Tribunal he left Malaysia in 2015 for similar reasons. He said the economic situation in Malaysia meant that it was not possible for people to support themselves and that all that he and the applicant wanted was additional time to save money so that they could meet their expenses when they returned.

    Assessment

    The refugee criterion

26. To satisfy the refugee criterion, among other things, there must be a real chance that the applicant would suffer persecution if she returned to Malaysia (s 5J(1)(b)) and that persecution must involve ‘serious harm’ (s 5J(4)(b)). To determine whether the applicant is a refugee, the Tribunal considered whether there is a real chance she would suffer serious harm if she returned to Malaysia.

    Country information

    The DFAT report indicates that the economic circumstances in Malaysia do not inevitably lead to significant poverty:

    The World Bank classifies Malaysia as an upper middle-income, export‑oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000)…

    According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition…

    Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021…

    The DFAT report notes that economic growth had stalled in 2021 because of COVID and it reported relatively high unemployment of 4.8%. However, the economic news since then has been positive. As for the rest of the world, there has been significant economic recovery with very high GDP growth of 8.7% in 2022 (with relatively low inflation) followed by good GDP growth of 3.7% for 2023 (‘Malaysia registers economic growth of 3% in 4Q, 3.7% in 2023’, The Star, 16 February 2024). There has also been median wage growth of 5.5% year on year for 2023 (‘Median wages for formal workers in Malaysia rise to RM2,600 in September’,  Business Times, 24 January 2024) and unemployment is relatively low at 3.3% at the time of writing (see Malaysia Unemployment Rate (tradingeconomics.com)).

    Is there a real chance of serious harm?

27. The Tribunal outlined the country information to the applicant and to [Witness A]. It asked them to comment on the proposition that there was economic growth in Malaysia and low unemployment. [Witness A] claimed that he knows that the Malaysian economy does not provide employment with wages that are high enough to meet expenses because he is in touch with people in Malaysia. He also said that people that collected such statistics were out of touch with the experience of most Malaysians and that the Government was hiding the real situation. The applicant did not purport to know details of the current economic situation in Malaysia except to say that it was difficult in her situation to make ends meet because she has no qualifications, limited experience and is an older woman in terms of the employment market. 

28. Having regard to the country information, the Tribunal does not accept that economic circumstances in Malaysia give rise in the usual case to the kind of poverty that would threaten subsistence and amount to serious harm. However, DFAT reports that there are inequalities and that poverty is persistent for particular groups (such as older women) and in rural areas (paragraph 2.12). [Town 1] is a small town of approximately 50,000 people in rural Borneo that depends on agricultural products grown for export. The Tribunal accepts that employment opportunities for older women without professional qualifications would be limited and that the applicant would have difficulty finding employment in [Town 1] and throughout Malaysia.

29. The Tribunal does not accept that it would amount to serious harm if it was necessary for her to spend time with her mother-in-law while her husband went to work. However, it accepts that it might also be difficult for her husband to find work at age [age] after some years out of the work force. It follows that the possibility that they would be unable to meet their regular expenses from employment is not remote or unlikely.

30. The Tribunal also accepts the applicant and her husband are unlikely to receive welfare payments that are adequate if they were unemployed. The DFAT report confirms that such assistance is modest, limited and varies between states (at 3.122). However, the Tribunal notes this reflects the societal expectation that families will financially assist and care for aging parents (as the applicant and her husband have done for his mother). Such norms are currently being questioned. However, recently enacted laws that impose penalties on children with parents entering aged care institutions demonstrate ‘the outsized role of filial piety in Malaysian society’ and that ‘the responsibility of care (is) one that should be shouldered by younger generations’. (Lee Min Hui, Caring for an aging Malaysia: beyond gender and filial norms, New Mandala, 22 November 2023).

31. It might be that the applicant and her husband would not be able to meet their day-to-day expenses without financial support from their children but this is not unusual in Malaysia. The applicant claimed that her children have no capacity to assist after meeting their own expenses and the Tribunal accepts that it might be difficult for them to do so. However, taking account of the strong cultural norms, the Tribunal does not accept that all [number] children are either unable or unwilling to financially support their parents. In that case, the Tribunal is satisfied the applicant’s basic needs will be met by her children if she and her husband cannot find employment in the foreseeable future.

32. It is entirely understandable that the applicant wants to continue to save money to have independence from her children. However, the Tribunal is not satisfied there is a real chance of her suffering serious harm if she returned to Malaysia because it is satisfied her children would contribute financially so she and her husband could meet their basic needs. It follows that she does not meet the refugee criterion.

    The complementary protection criterion

33. Among other things, to meet the complementary protection criterion, there must be a real risk of significant harm if the applicant were removed to Malaysia. The Tribunal is not satisfied for the reasons above that there is a real chance of serious harm if the applicant were to return to Malaysia. For the same reasons, the Tribunal is not satisfied that there is a real risk of significant harm if the applicant were removed to Malaysia. She therefore does not meet the complementary protection criterion.

    CONCLUSION

34. The Tribunal has found the applicant does not meet the refugee and complementary protection criteria in s 36(2)(a) and (aa). It has no evidence that she is a family member of a person who satisfies those criteria and it finds that she does not meet the criterion in s 36(2)(b) and (c) for that reason. In that case, it will affirm the decision to refuse to grant her a protection visa.

    DECISION

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

    Kathleen Timbs
    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.

    …