1820365 (Refugee)

[2024] AATA 2825

1820365 (Refugee) [2024] AATA 2825 (11 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820365

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Sydelle Muling

DATE:11 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 11 July 2024 at 11:12am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – victim of loan sharks – mixed religious relationship – detention – no planned cohabitation – divorce – decision under review affirmed

LEGISLATION

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

CASES

Abebe v The Commonwealth (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559

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 Immigration and Border Protection on 27 November 2017 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 27 June 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a protection visa.

3. The applicant appeared before the Tribunal on 12 April 2024 and 8 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s girlfriend during the hearing held on 8 May 2024. The Tribunal hearings were conducted with the assistance of an interpreter in the Malay and English languages. An interpreter in the Mandarin and English languages also assisted during the hearing held on 8 May 2024.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The applicant is [an age]-year-old Muslim male who was born in Pahang, in Malaysia. According to his protection visa application, the applicant resided in [Town 1], Selangor. He completed [number] years education and is fluent in Malay and English. The applicant was employed as [an occupation 1] in [Town 1] from 2007 to 2016. He departed Malaysia legally on [a day in] April 2017, arriving in Australia on [the following day].

11. The applicant presented his claims in his protection visa application, summarised as follows:

    ·He was a volunteer in politics in his district and had been a politician over the last 3 years.

    ·He was part of team which held a gathering to uphold their rights and seek justice. He and several others were apprehended, investigated and jailed for 4 days.

    ·His name was blacklisted and he was persecuted for holding illegal rallies.

    ·If he returns to Malaysia he may face a form of mistreatment that he cannot explain in detail. He will feel dissatisfied and will participate in the party and he will be mistreated and jailed again.

    ·He decided to migrate to Australia as he has a few friends and contacts here and they told him the country is “peaceful, good people, environment, benefit and good opportunity too”.

12. The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 27 November 2017.

13. The applicant appeared before the Tribunal on 12 April 2024 and 8 May 2024 and gave oral evidence about his circumstances in Malaysia, reasons he left the country and fears upon return there now. The evidence will be discussed below, in the analysis and findings.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issues in this review are whether there is a real chance that, if he returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

16. The applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. The Tribunal accepts on the evidence before it, namely a copy of the applicant’s passport, that Malaysia is the applicant’s country of nationality and receiving country for the purposes of complementary protection.

17. The applicant claimed in his protection visa application that he was a volunteer in politics in his district and a politician over the last 3 years. He claimed to have been part of a team that held rallies to uphold rights and seek justice, for which he was apprehended, investigated, and jailed. The applicant claimed that if he returns to Malaysia, he will participate in “the party” and will be mistreated and jailed again. In the hearing, the applicant advised that a lawyer had made the protection visa application and he was not aware of what was written in the form. After the Tribunal summarised the contents of his protection visa application form, the applicant confirmed the claims detailed were incorrect and that he had never mentioned anything about politics. Based on the applicant’s evidence in the hearing, the Tribunal finds that the applicant has resiled from the claims made in the protection visa application form. As such, the Tribunal has disregarded these claims and instead considered the claims raised by the applicant in the hearing.

18. The applicant claimed in the hearing that he cannot return to Malaysia because he has a debt, and he is afraid the loan shark will come to find him. He explained that he had borrowed 68,000 MYR in 2012 to buy a house. The Tribunal does not accept the applicant’s claims regarding this loan to be credible for a number of reasons, including that it finds several aspects of his evidence to be vague, confusing, and implausible.

19. The Tribunal notes the applicant claimed in the hearing that the money that he borrowed was to buy a house in a village where houses were quite cheap. When the Tribunal asked the applicant the address of the house which he bought with the money he allegedly borrowed, the applicant referred to the address he provided at the beginning of the hearing which he claimed to have resided at since 1998 up until he travelled to Australia in April 2017. When the Tribunal noted this, the applicant stated there were 200 houses using the same address because it is “one ground”. The Tribunal does not find the applicant’s explanation convincing given the applicant provided a specific lot number as part of his address which is not consistent with there being one address for some 200 houses.

20. The Tribunal finds the applicant’s evidence regarding basic aspects of the money he allegedly borrowed from the loan shark unclear and lacking. When asked about the terms of the loan, the applicant stated that he borrowed 68,000 MYR but received only 54,000 MYR. The Tribunal asked the applicant what interest he was being charged and he stated he was not sure but normally he was asked to pay 4000 MYR each month. He also claimed to have been asked to pay the whole 68,000 MYR and had discussed this with his mother and she agreed to pay this amount but that excluded interest. Asked when he was required to repay the money that he borrowed from the loan shark, the applicant stated in the same year.  He claimed in the first year they came to him and he said maybe he would pay them next year but after a month they said if he could not pay them he must pay the interest. Yet, the applicant was unable to articulate how much interest he was paying except that he had to pay 4000 MYR a month and if he paid less, the interest would increase.

21. The Tribunal has taken into consideration the applicant’s evidence in the hearing that after allegedly borrowing the money in 2012, he only made 3 payments and nothing further until early 2015 when his [brother] repaid the loan shark 54,000 MYR, yet nothing happened to either him or any of his family members during the period of 2 to 3 years he failed to make any payments. The Tribunal notes the applicant’s evidence that he ran away after he ceased making payments after 3 months, staying at his friends’ homes and his brother’s house from 2013. He claimed that he would “escape” at daytime and return home at midnight and his mum would tell him they had come looking for him so the next morning he would escape again. When the Tribunal queried if he escaped every morning and returned at midnight, the applicant stated not every single day but sometimes twice a week. He claimed to have done this for a period of 3 to 4 years. Not only does the Tribunal find it implausible that the applicant lived either with friends or his brother on a weekly basis over a period of several years, particularly given his evidence was that the money was allegedly repaid to the loan shark in early 2015, the Tribunal also finds that this conflicts with the applicant’s evidence at the beginning of the hearing that he resided at the one address from 1998 up until he came to Australia and did not live anywhere else other than in [Town 2] prior to 1998. When the Tribunal put this discrepancy in his evidence to the applicant, he reiterated that he did run away to his brother’s place and stayed a day or two but at midnight he would return home to see if it was safe and the same with his friends, he would go in the morning and return at midnight. The Tribunal finds the applicant’s claim in this respect to be far-fetched.

22. Further, as the Tribunal put to the applicant, it has difficulty accepting that if he had borrowed 68,000 MYR and had only made payment on three occasions, that nothing more would have happened apart from people allegedly coming to his home looking for him. The Tribunal notes the independent information it discussed with the applicant regarding the modus operandi of illegal money lenders when an individual is unable to service a debt which includes red paint being thrown on doors, threats, actual physical violence and/or having their families’ physical safety threatened.[1] The Tribunal notes the applicant’s response that it was different at the time that he borrowed money in 2012. While the Tribunal appreciates the independent information referred to during the hearing is not contemporaneous with the applicant’s claims, the Tribunal finds it implausible that if the applicant ceased making any payments after a period of 3 months, that no further action would have been taken by the loan shark to recover the debt, particularly against his family members if the applicant was unable to be located over a period of a few years.

    [1] Australian Department of Foreign Affairs and Trade, DFAT County Information Report: Malaysia, 29 June 2021 at 3.112

23. The Tribunal also notes whilst the applicant initially claimed in the hearing that he cannot return to Malaysia because he has a debt, his subsequent evidence directly contradicted this as he asserted that his [brother] had repaid the loan shark and the debt was settled. The applicant claimed that in early 2015 his [brother] repaid the loan shark the money that was owed and there was no longer any debt. He stated when his [brother] met with the loan shark, the loan shark confirmed the debt was settled but told his [brother] that he (the applicant) should not show his face. Despite this, the loan shark gang still came to his village to find him and blackmailed and threatened his [sister], saying he still needed to pay them.

24. The Tribunal also finds the applicant’s claim regarding this continued interest in him by the loan shark’s underlings or followers, as he variously described them, to be implausible. The applicant claimed that these people went to his [sister], maybe once in 3 or 6 months, the last time being three years ago, however he stated that he did not know their purpose. He suggested they were trying to find him to ask for money because they were unhappy that his [brother] had spoken directly with the loan shark boss. The Tribunal finds it unbelievable that if these people were looking for the applicant, as he claims, that they would not tell his sister why, particularly if it was because they wanted him to pay them. It also has difficulty accepting that if the only interest in the applicant was for him to continue paying money, despite the fact his debt had been settled, that they would not seek payment from his sister and would only come looking for him once every 3 or 6 months.

25. Based on the above, the Tribunal finds the applicant’s claims in the hearing regarding the money he allegedly borrowed from the loan shark and what subsequently transpired not credible. The Tribunal does not accept that the applicant borrowed 68,000 MYR from a loan shark in 2012 to buy a house. As such, it does not accept that the loan shark came to find the applicant every single day in his village and if he returns to Malaysia, the loan shark will come to find him because he has a debt, as the applicant initially claimed in the hearing. Nor does it accept that the applicant’s debt was repaid by his [brother], but the loan shark’s people continued to look for the applicant, presumably to get money from him, as the applicant also asserted during the hearing. It therefore does not accept that the loan shark’s people visited the applicant’s sister looking for him once every 3 or 6 months, with the last visit being 3 years ago. Accordingly, the Tribunal does not accept that if he returns to Malaysia, the applicant faces a real chance of serious harm from the loan shark or anyone associated with the loan shark. The Tribunal therefore finds that the applicant does not face a well-founded fear of persecution for this reason.

26. The applicant claimed in the hearing the other reason he does not want to return to Malaysia is because his girlfriend is of a different religion and race and their families disapprove of their relationship. The applicant is an ethnic Malay Muslim, whereas his girlfriend is an ethnic Chinese Christian.

27. The Tribunal does have some concerns about the applicant’s claimed relationship with his girlfriend given a number of discrepancies in his and his girlfriend’s evidence regarding several aspects of their relationship. Firstly, the Tribunal finds the applicant’s evidence regarding his girlfriend’s date of birth incorrect. The applicant claimed his girlfriend was born on [DOB 1], however her evidence was that she was born on [DOB 2]. When the Tribunal put this discrepancy in his evidence to the applicant, noting that it would expect that he would correctly recall his girlfriend’s date of birth when they have been together since 2014, the applicant responded with the correct date, [DOB 2]. He did not provide any explanation for what appears to be a mix-up of the date and month his girlfriend was born. The Tribunal finds it concerning that if the applicant and his girlfriend have been together for as long as suggested, that the applicant would not know his girlfriend’s correct date of birth or have a reasonable explanation for recalling it incorrectly.

28. Second, the Tribunal notes when asked about the first time they met, the applicant explained that his girlfriend came to a place where he was playing [sport 1] in 2012-2013 and after he finished playing [sport 1], they went to eat at a restaurant with a group of friends. However, the applicant’s girlfriend’s evidence was that they met in 2013 when she went with a group of friends to watch [sport 2]. When the Tribunal put this to the applicant, he responded the place they play [sport 1] is near the place they play [sport 2]. The Tribunal finds that this does not adequately address the difference in the applicant and his girlfriend’s evidence regarding the circumstances in which they met.

29. Third, the applicant claimed that his girlfriend had an argument with her family about their relationship because her mother said he was too young and she was told that if she chose him, she could not call her parents mum or dad. He claimed that this happened in 2014. However, the applicant’s girlfriend’s evidence in the hearing was that her family did not make her choose between them and the applicant. Further, the Tribunal notes the applicant’s own internally inconsistent evidence that his girlfriend had continued to live with her family after 2014 and has also continued to be in contact with her family since coming to Australia.

30. Finally, the applicant claimed that his girlfriend came to see his [sister] and [this] sister had said it was fine if they were in a relationship as it was up to them to make their own decisions. However, in stark contrast, the applicant’s girlfriend told the Tribunal she had not met any of the applicant’s family and did not know if his family even knew about her. When the Tribunal put this inconsistency to the applicant, he stated that his girlfriend had never met his sister, but he had told his sister about their relationship, which the Tribunal finds contradicts his earlier evidence.

1. Despite these concerns, the Tribunal is prepared to give the applicant the benefit of the doubt and accept he has been in a relationship with his girlfriend from 2014. The Tribunal however does not accept on the evidence before it that the applicant’s family objected to his relationship with his girlfriend. The applicant’s evidence was that his sister was aware of their relationship, whether she met his girlfriend or he just told his sister about his relationship, and his sister had responded that as long as he was happy. With respect to the applicant’s girlfriend’s family, the Tribunal does not accept the applicant’s assertions that her family do not like Muslims. Instead, the Tribunal has had regard to both the applicant and his girlfriend’s evidence which suggests the applicant’s girlfriend’s family were concerned about the age difference between them rather than their religious differences. The applicant’s girlfriend told the Tribunal that her siblings were aware of her relationship with the applicant but did not agree because they believed he was too young and not really into her. The applicant also spoke about the fact his girlfriend’s family did not approve of their relationship because they thought he was too young and maybe he just wanted her money. Further, for the reasons provided above, the Tribunal does not accept the applicant’s girlfriend’s family gave her an ultimatum, either them or the applicant, if she continued her relationship with the applicant.

2. The Tribunal notes when asked in the hearing what would happen to him if he returned to Malaysia and continued his relationship with his girlfriend, the applicant stated that he did not know. When asked if he believed he would be harmed in Malaysia because of his relationship with his girlfriend, the applicant responded that he was not sure. The Tribunal asked the applicant who would harm him if he returned to Malaysia because of his relationship with his girlfriend and he responded that it was hard for him to answer.  

3. The Tribunal asked the applicant if he had ever experienced harm in the past in Malaysia because of his relationship with his girlfriend and he stated no, never. He confirmed in the few years they were in a relationship in Malaysia, he did not experience any harm. The applicant’s evidence was that he and his girlfriend would spend time together going out for dinner, to the movies and sightseeing. While the applicant claimed that he and his girlfriend could not physically touch each other in public and that if some villagers saw them holding hands they would ask him what race and religion he is, as the Tribunal put to the applicant in the hearing, its understanding is that being a predominantly Muslim population, Malaysian society generally respects a separation of genders, therefore it is seen as especially awkward and inappropriate to affectionately touch someone of the opposite gender in public. The applicant confirmed this as correct. The applicant also stated that if he and his girlfriend booked a hotel room, the booking would be made in his girlfriend’s name because if the religious department or JSI saw his name (which is identifiably Muslim), they would catch them. He confirmed that he and his girlfriend were never caught in such a situation, but he was afraid this may happen. The Tribunal is mindful that an applicant does not have to show past harm in order to demonstrate a well-founded fear of being persecuted.[2] However, the Court has held that what has occurred in the past is a reliable guide as to what will happen in the future.[3]

   [2] In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that ‘[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past’

   [3] MIEA v Guo (1997) 191 CLR 559 at 575.

4. The applicant claimed that if he returns to Malaysia it would be hard for him and his girlfriend to live together because Islamic law prevents them from doing so out of wedlock. The Tribunal notes the applicant and his girlfriend are living in Australia in a shared household of 6 to 7 people. The Tribunal accepts that as a Muslim, the applicant would be liable for prosecution under syariah law for offences of khalwat (illicit proximity) and zina (unlawful sexual intercourse) if he was to live with his girlfriend in a de facto relationship. However, the Tribunal does not accept on the evidence before it that if the applicant returns to Malaysia, that he and his girlfriend would in fact live together in a de facto relationship.  It notes that when asked if they would continue living together if he was required to return to Malaysia, the applicant stated that if his girlfriend converts to Islam they will get married, and he will live with her. There was nothing in the applicant’s evidence to suggest an intention to live with his girlfriend in Malaysia in a de facto relationship. The Tribunal also does not accept that the applicant’s girlfriend demonstrated any commitment to cohabiting with the applicant in Malaysia. The Tribunal has also had regard to the applicant’s girlfriend’s evidence that she is still married to her husband. According to the applicant’s girlfriend, she separated from her husband around 2013, when her business failed. Despite the fact it has been over ten years since her marriage allegedly ended, neither she nor her husband have formally ended the marriage. When asked why she has not divorced her husband, the applicant stated because her eldest son threatened to stop studying if she and her husband divorced. The applicant’s girlfriend stated that she did not want her children’s lives affected by what adults did and that she planned to divorce her husband once her children have finished university and had grown up. The Tribunal notes the applicant’s girlfriend’s children are aged [over 18]. The Tribunal does not accept on the evidence before it that the applicant’s girlfriend has any intention of divorcing her husband now or in the reasonably foreseeable future in circumstances where the applicant’s girlfriend and her husband have purportedly not been together for a decade, yet she has delayed divorcing her husband because of the impact it may have on her now adult children. Taking into consideration the applicant’s evidence regarding the particular circumstances in which he would live together with his girlfriend in Malaysia (that being if she converts to Islam), and the importance clearly placed by the applicant’s girlfriend on not upsetting her children or their lives, the Tribunal does not accept that the applicant and his girlfriend will live together on their return to Malaysia.

5. With respect to marriage, the Tribunal accepts that an inter-faith marriage between a non-Muslim and a Muslim is not permitted either under the civil law or Syariah law. Malaysia’s civil marriage law does not preclude mixed marriages amongst non-Muslims, but Syariah law stipulates that a non-Muslim must convert to Islam before marrying a Muslim.[4] The applicant’s clear evidence in the hearing was that while he hoped to marry his girlfriend he would only do so if she converted to Islam and his girlfriend has told him she was not ready yet. The applicant’s girlfriend confirmed that she will not convert to Islam. The Tribunal notes in particular when it asked the applicant’s girlfriend what would happen with her relationship with the applicant if she was not prepared to convert, she responded that she wished they could just stay in Australia as she loves this country and is quite settled here after so many years. Having regard to the views of both the applicant and his girlfriend, and the fact that the applicant’s girlfriend is still legally married to her husband, the Tribunal finds the chances of them marrying now or in the reasonably foreseeable future remote.

   [4] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 29 June 2021, at 3.66-3.71.

6. The Tribunal has taken into consideration independent information it discussed with the applicant in the hearing that mixed marriages are common in Malaysia, accounting for 9 per cent of all marriages in 2019, marking a gradual increase from previous years.[5] Mixed marriages between persons of different ethnicity or religious backgrounds is commonplace in Malaysia and society is generally receptive to these unions.[6] While the applicant and his girlfriend are not married and the Tribunal does not accept for the reasons discussed above that they will marry in the foreseeable future, it is of the view that this information is still relevant to inter-faith or mixed relationships generally in Malaysia. The Tribunal notes the applicant was unable to articulate with any clarity what he believes will happen if he returns to Malaysia and continues his relationship with his girlfriend, including whether he would be harmed for this reason, suggesting that he does not have a subjective fear of harm. Regardless, taking into consideration the independent information the Tribunal discussed with the applicant in the hearing, as well as the nature of the applicant’s relationship with his girlfriend and his evidence that he never experienced any harm in the past in Malaysia over the several years that he and his girlfriend were together before they departed the country, the Tribunal finds the chance of the applicant being seriously harmed, including facing societal discrimination, harm arising from societal attitudes or being caught by the religious police and/or JSI, if he returns to Malaysia and continues his relationship with his Chinese Christian girlfriend to be remote. The Tribunal therefore does not accept that the applicant’s fear of persecution for this reason is well-founded.

   [5] Marriage of cultures can spawn unity’, Bernama, 18 August 2020; ‘Interfaith Marriage and Religious Conversion: A Case Study of Muslim Converts in Sabah, Malaysia’, Khadijah Mohd Hambali, University of Malaysia, November 2011, pp.8-12,

   [6] ‘A truly 'muhibbah' CNY for two couples’, New Straits Times, 24 January 2020; ‘Muhibbah born out of

   Complementary protection

7. As the Tribunal does not accept that the applicant is a refugee as defined in the Act, the Tribunal has considered the alternative criteria in s 36(2)(aa), whether 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 he will suffer significant harm as exclusively defined in subsection 36(2A) of the Act.

8. Having regard to the definition of significant harm in s 36(2A) of the Act, as set out in the attachment of this decision, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in Malaysia will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him, or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

9. The Full Federal Court held in MIAC v SZQRB 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 decision [7]. For the reasons discussed above, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from any loan shark or their associates or as a result of his relationship with his Chinese Christian girlfriend.

   [7] MIAC v SZQRB [2013] FCAFC 33 [246], [297], [342]

10. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

    CONCLUSION

11. 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).

12. 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).

13. 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

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

    Sydelle Muling
    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.

    …

    
    

love’, New Straits Times, 16 September 2019; ‘Mixed marriages give rise to Sarawak hybrid population, says
CM’, Bernama, 15 July 2019; ‘Sabah, best example of people from different backgrounds staying united’,
New Straits Times, 23 December 2018; 'Ethno mix-match couples are able to fit seamlessly into society',
The Sun Daily, 14 September 2021; ‘Marriage of cultures can spawn unity’, Bernama, 18 August 2020; ‘'It was love at first sight when I first saw her'’, New Straits Times, 17 September 2021.