1820281 (Refugee)

[2024] AATA 2318

1820281 (Refugee) [2024] AATA 2318 (12 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820281
2006989

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Genevieve Hamilton

DATE:12 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas.

Statement made on 12 June 2024 at 12:03pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – fear of loan shark – applicant seriously assaulted another person – fear of revenge attacks – economic conditions – employment – social media harassment – decision under review affirmed

LEGISLATION

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

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATIONS FOR REVIEW

1. This are applications 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 (Cth) (the Act).

2. The applicants applied for the visa on 11 April 2017 and 18 January 2019 respectively. The delegates refused to grant the visas on 4 July 2018 and 25 March 2020 respectively.    

3. The applicants attended a hearing of the Tribunal on 27 May 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

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.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. 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.

    CLAIMS AND EVIDENCE

16. In his protection visa application applicant one said he was born in Sabah, Malaysia in [specified year] and is a Malaysian citizen as are his parents.  He speaks, reads and writes Malay.  He said he is not in contact with relatives outside Australia.  He had no contacts in Australia.  He arrived in Australia [in] January 2017, as a visitor travelling on a Malaysian passport.  He completed his high school education in [year].  He did not declare any family members where indicated in the application form.  He said he had never been married or in a de facto relationship.  He did not declare any employment history. 

17. Applicant one said he had a problem in his country when out of jealousy he beat up someone having a relationship with his girlfriend, [in] December 2016, leaving the victime half paralysed, and ran away.  Now the family members of the victim are looking for him and so are the authorities.  The family will beat/kill him or send him to the police. 

18. It is noted in the Delegate’s decision that during his protection visa interview applicant one volunteered at the outset that the claims in his protection application were not true and that they were written by someone else.  He did not now how to make the application and so he asked someone else to do it.  He left Malaysia to find work and move on from a recent marriage break up.  He wanted to stay in Australia because he can earn far more here than working in his rural area of Malaysia. 

19. In her protection visa application applicant two said she was born in Malaysia in [year] and is a Malaysian citizen, as are her parents.  She speaks, reads and writes Malay.  She had never married or been in a de facto relationship.  She named her two parents living in Malaysia.  She is in regular contact with her family.  She came to Australia in November 2018 as a visitor, travelling on a Malaysian passport.  She completed secondary school in [year]. 

20. Applicant two said she left Malaysia because she had too many debts.  She had been borrowing money from a loan shark since the age of 18 because she wanted join a multi-level marketing business.  She contributed [amount] but then the leader disappeared.  The loan shark is hunting for her and will do something bad to her.  She tried to move to Kuala Lumpur but the loan shark is a gangster with a lot of followers and she can’t work at one place for long.  They shouted at and said if she did not pay within a week they would sell her into prostitution.  The authorities could not protect her because she did not want anyone to know. 

21. The applicants lodged separate review applications.  However, in the course of preparing their cases for hearing they both informed the Tribunal that they were married to each other and so their cases were combined.  According to documents they submitted, they were married in accordance with Islamic Law [in] February 2021.  Their marriage was also solemnised by a civil Celebrant [in] March 2023 and this marriage was registered with the Victorian Government.  The certificate confirms that applicant one is divorced.  They had a child on [specified date]. 

22. At the hearing applicant one said his father died in 2009, he [has specified] siblings.  After he finished [grade] he worked as a contract labourer.  He has a child (male) from his first marriage, aged [age].  He came to Australia because after he divorced he began drinking and gambling and causing problems for his family.  He said nothing was stopping him from going back to Malaysia, but he was afraid future financial pressures would cause another marriage break up and he did not know what would happen to his (new) wife and child in that event.  He wants to stay in Australia to change his life. 

23. Applicant two said she [has specified] siblings.  Her father is [an occupation 1].  She came to Australia because she was a burden her parents and she was afraid they would marry her off.  She said there was no other reason.  She did not owe a debt to a loan shark.  The Tribunal observed that the applicant had now made a marriage of her choice, and asked what applicant two was afraid of now.  The applicant said applicant one’s ex wife was harassing her on social media. The Tribunal observed that applicant one himself had not mentioned this in his oral evidence.  Applicant one said his ex wife wants to get back together with him.  He had not paid it much attention because it was an issue between the women. 

24. The Tribunal asked applicant two why she was in contact with the ex wife.  She said the ex wife contacted her on a fake profile.  She also went to applicant one’s sister and accused applicant two of being the harasser and threatened to report applicant two to the police.  The Tribunal asked whether such a report had been made.  Applicant two said she did not know and that she had never replied to the ex wife.  Whenever applicant two posts something the ex wife takes it personally and was jealous that the applicants had a [child].  The ex wife managed to get applicant two to add her (the ex’s) whole family to her network and now they were all attacking her.  She does not want to see them.  The Tribunal observed that it was not necessary for applicant two to see the ex wife or the ex wife’s family.  The Tribunal put to the applicants that this claim seemed commonplace and did not indicate any risk of serious or significant harm.  

25. Applicant one said applicant two was worried he would get back with his ex.  The Tribunal observed that he did not have to do so.  He confirmed that he would not.  He then said that if he goes back to his home town applicant two will refuse to go with him.  He was not able to explain why her feelings about his ex wife would cause her to go so far as to refuse to go with him. 

26. Applicant one said he was afraid to go back to Malaysia because he may not be able to take care of his wife and [child].  The Tribunal observed that unless the applicant would be prevented from earning a livelihood in a discriminatory way, or would suffer significant harm as defined in the Act, protection obligations were not enlivened. 

27. FINDINGS AND REASONS

28. Based on the information in his protection application the Tribunal finds that the applicants’ country of nationality is Malaysia. 

29. The applicants did not claim to fear harm based on their race, religion, nationality, membership of a particular social group or political opinion, and no such claims arises clearly from their situation. 

30. The Tribunal is therefore not satisfied that the applicants face a real chance of serious harm as defined in ss 5J(4) and (5) for any of the reasons specified in s 5J(1).  The applicants therefore do not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicants are not refugees as defined in s.5H(1). 

31. Regarding complementary protection, based on their own evidence the Tribunal does not accept that applicant one is at risk of harm due to having beaten someone up, or that applicant two is at risk due to debt to a loan shark.

32. The Tribunal is not satisfied that there is a real risk that ill feeling and/or harsh words on the part of the ex wife of applicant one could lead to significant harm to either applicant, as defined in the Act, i.e. arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. 

33. The Tribunal does not accept that there is a real risk of applicant two being reported to the police.  No evidence of the nature of any of the posts made by any party was submitted which would support there being such a risk. 

34. The Tribunal accepts that the applicants will suffer financial constraints in Malaysia however this does not amount to significant harm as defined.  The suggestion that it may lead to them divorcing, affecting the welfare of the family unit, was no more than speculative. 

35. The Tribunal is not satisfied that there are substantial grounds to believe there is real risk the applicants will suffer significant harm as defined in s 36(2A). 

36. CONCLUSION

37. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

38. There is no suggestion that either of the applicants satisfies s 36(2) on the basis of being a member of the same family unit as any other person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

39. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

40. The Tribunal affirms the decisions not to grant the applicants protection visas.

    Genevieve Hamilton
    Member