1820471 (Refugee)

1820471 (Refugee) [2024] AATA 4274 (17 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820471

COUNTRY OF REFERENCE: Malaysia
MEMBER:Sophia Panagiotidis
DATE:17 June 2024

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

Statement made on 17 June 2024 at 10:58am

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – employment – economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 V Minister for Home Affairs [2020] FCAFC 2
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 27 February 2018. The applicant’s claim in the protection visa application concerned his sexuality. The delegate was not satisfied that the applicant had established his claims and found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicant will suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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
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 as a member of the same family unit as such a person and, and that person holds a protection visa of the same class. The relevant law is set out in the attachment.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia [in] December 2017 on an apparently genuine Malaysian passport and identity card, copies of which are contained on the Department of Home Affairs’ file (the Department). He has at all times stated he is a citizen of Malaysia, and he has been assessed on that basis by the Department.
The Tribunal finds that the applicant is a citizen of Malaysia and has assessed his claims against Malaysia as the country of his nationality and the receiving country.
The applicant’s background
The applicant confirmed the following personal information during the hearing. He confirmed his date of birth in Terengganu where he lived until he moved to Kuala Lumpur for one year prior to coming to Australia. The applicant identifies as being of Malay ethnicity and is a Muslim. The applicant confirmed he completed [grade] at primary school and did not undertake any secondary education. He worked at various jobs including [specified jobs] in his home area and in [industry 1]. The work was not constant. His family owns a [business 1] and he worked for them as well when he did not have outside work. His parents who own a [business 1] in his home area are in Malaysia. He has [specified family members] who also live in Malaysia. [Some siblings] married and the [other] is still studying. The applicant was married for two years but he divorced before coming to Australia. There is one child of the marriage, a daughter who is [age] years old and lives with her mother. He said he is not sure where they are and he has heard that she has remarried.
The applicant confirmed he arrived in Australia [in] December 2017 as a visitor. He has had work since coming to Australia.
Tribunal accepts the above matters to be true.
The applicant’s claims for protection
The claims as set out in the protection visa application concern the applicant’s sexuality. He has claimed he is a homosexual and Malaysia does not encourage homosexuality as it is an Islamic country and this is prohibited. He claims to have experienced harm from a family member because of this and he did not seek help because homosexuality is strongly prohibited.
In the pre-hearing information form completed and provided to the Tribunal on 12 December 2023, the applicant provided further information. He states that political issues and high corruption has caused the economy to be unstable and it was difficult to find a job and the salary was low.
The applicant was asked if he completed his protection visa application himself. He said a friend completed this and he paid him. He has lost contact with this friend. He really did not know what was included in the application apart from his claiming to be part of the LGBTQI community. He said that the information is essentially wrong and he is not gay.
During the hearing, when the applicant was asked to clarify his claims for protection and why he feared returning to his country, he said he did so because he did not want to return to Malaysia. He applied for the visa because it was the only way he could stay here. His reasons for not wishing to return are that he was stressed and he could not find a job. He was made redundant and he had to find other work. He did not want to work for his family anymore and he was more or less homeless. The applicant said his family had a [business 1]. His father is over [age] years old and his mother is over [age]. When he worked in their business he was not paid much and they were just using his time. His relationship with his parents is not that close and he seldom calls them. He came to Australia because he wanted a new start and to reduce the stress he was under. After he arrived his levels of stress decreased. It was harder to find work in Malaysia than Australia.
According to the applicant’s evidence, he had a number of jobs in his home area and he was asked in what way was it difficult for him to find work. He said he had never worked at one place for a long time and the work was on and off. He was not paid properly and some of his pay was on commission for sales and he was made to do things he was not paid for. He was bullied as well. When asked to clarify why he was bullied, the applicant said when he was new to a job he was asked to do more work compared to others.
The applicant went to Kuala Lumpur to find work and it took him three moths to do so. Then he decided to save money to come to Australia. He borrowed a lot of money from friends so he could come.
The applicant was asked about his previous statement that he had been homeless. He said while he was in Kuala Lumpur he did not have money to buy food. Prior to going to Kuala Lumpur he had been living in his village with his family and did not have to pay rent. When he went to Kuala Lumpur he had to pay rent and buy food. He had left home because he was trying to get work which was better but this did not happen.
The applicant was asked if he could join the family business. He said it is a small business in a small area and does not generate enough income. He did not think the business could be expanded as his parents are old fashioned and have not made any improvements. While he was here he tried to give them advice about expanding the business and sent some money to his parents. He had watched some business programs on YouTube and he told his parents. It did not work. He sent money but his parents spent it on something else.
The applicant was asked if he owed any money back in Malaysia. He said he had repaid his friends the money he had borrowed and settled everything. He also sends money for child support. When asked if he had managed to save any money since coming and working in Australia, the applicant said he tried to do business on-line but failed so he does not have any money. He tried [trading] and has lost $20,000 on this. He did not conduct this trading through a registered agent and only learned about it on YouTube. He will learn more about doing this and go into it further.
The Tribunal asked the applicant what he fears if he returns to Malaysia and what risks he faces. He said he wants a better life. He cannot support his child in Malaysia, he will not earn enough and will face difficulties. His daughter’s step father is not supporting her and his ex-wife told him that she is his responsibility. His daughter is [age] years old. His stress levels will be high if he returns. He has had jobs [fruit] picking in Australia but has not worked for over a month and is waiting for another job. In his first and second year in Australia, he worked hard and repaid his debts. In his third year he sent money to his parents and in his fourth and fifth year he lost money on his on-line business. In his sixth year in Australia he kept some money to survive until the next job.
As the applicant’s claims relate essentially to economic harm, the Tribunal referred to the criteria for a protection visa and asked if he believed that he met the criteria. The applicant was also referred to country information about the Malaysian economy[1] which indicates that this has improved and was asked what would prevent him from finding work in order to support himself. He was also referred to country information regarding the Malaysian welfare system which indicates that in October 2017, the government approved the introduction of unemployment benefits including allowances and support for training. There are also various programs to support the poor.[2]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, June 2021 2021 DFAT Report), DFAT country information report Malaysia; see also Bertelsmann Stiftung, BTI 2024 Country Report Malaysia BTI 2024: Malaysia : BTI 2024 (bti-project.org)
[2] 2021 DFAT Report, DFAT country information report Malaysia
The applicant responded by saying there are still problems in Malaysia.
He was asked what was to stop him saving money as he has done before and returning and starting his own business. He said at the moment, he does not have enough money. His friend went back to Malaysia with money but had a hard time. He started a business but this closed. Other friends also had the same experiences. Types of business started by his friends included food stalls, selling groceries but they did not survive long. They all closed. He does not know why.
The applicant said that he left school when he was very young and has minimal qualifications. He does not have a high school education. His parents stopped him from continuing school after he finished his primary education. He does not know why, maybe it was because they were in financial difficulties.
The applicant was asked if there are any other reasons he fears returning to Malaysia. He said that apart from worrying about being able to find work there is no other reason.
Country information
Malaysian economy
The Tribunal has had regard to country information referred to earlier and discussed with the applicant which indicates that there has been improvement to the Malaysian economy.[3]
[3] 2021 DFAT Report, DFAT country information report Malaysia; see also Bertelsmann Stiftung, BTI 2024 Country Report Malaysia BTI 2024: Malaysia : BTI 2024 (bti-project.org)
The Tribunal also notes the United Nations Development Program’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the 'very high human development' category. Further, 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, although this may be delayed somewhat by the effects of COVID-19, and some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.[4]
[4] 2021 DFAT Country Report, DFAT country information report Malaysia
DFAT reports that 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 (MYR 2,208 (AUD $700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called 'B40' who are the recipients of government assistance, and poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. [5]
[5] 2021 DFAT Country Report, DFAT country information report Malaysia
In 2019, the United Nations Special Rapporteur on Extreme Poverty reported that Malaysia’s claim to have significantly reduced poverty since the 1970s was undermined by an unrealistically low poverty line despite many years of robust economic growth, and that its low poverty line is not consistent with the increases in the cost of living that has occurred over many years of economic growth.[6] Accordingly, Malaysian authorities have turned their attention to reducing income inequality, focusing on the poorest 40 percent of the population (B40) who remain vulnerable to increases in the cost of living or economic shocks.[7]
[6] Statement by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights, on his visit to Malaysia, 13 to 23 August 2019, OHCHR, 23 August 2019, 202200729172426
[7] The World Bank, The World Bank in Malaysia, 29 November 2022, 20230905122349
The Malaysian Department of Statistics reported in February 2021 that Malaysia has a labour force participation rate of 68.5 percent and an overall unemployment rate of 4.8 per cent. Prior to the pandemic, Malaysia's unemployment rate was 3.3 percent in 2019. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 percent, compared to 4 percent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 percent had secondary level education, 13.1 percent had primary level education and 2.7 percent had no formal education.[8]
[8] 2021 DFAT Country Report, DFAT country information report Malaysia
Country information relating to the Malaysian economy indicates that, although negatively impacted by the COVID-19 pandemic, like most countries globally, it has performed strongly in recent times. Measures taken by the Malaysian government include repeal of the unpopular Goods and Services Tax in 2018 which reduced the cost-of-living pressures on Malaysians;[9] the minimum wage was increased by 25 percent from 1 May 2022, from MYR 1,200 to MYR 1,500 per month and the Malaysian government ‘remains steadfast in its decision’ to uphold the minimum wage within the framework of a ‘progressive wage system’ which aims to ‘elevate workforce productivity.’[10] Further, the Malaysian economy has continued growing and inflation is low by global standards (in June 2023 inflation declined to 2.4 percent from 2.8 percent in the previous month). [11]
[9] New Straits Times, Malaysia’s Parliament repeals GST, set to replace it with SST in September, 8 August 2018, Malaysia's Parliament repeals GST, set to replace it with SST in September | The Straits Times
[10] ASEAN Briefing, Malaysia increases Minimum wage from May 2, 2022, 6 June 2022, Malaysia Increases Minimum Wage from May 1, 2022 (aseanbriefing.com); hrmasia, Minimum wage in Malaysia dictated by progressive wage system, 29 August 2023, Minimum wage in Malaysia dictated by progressive wage system | HRM Asia : HRM Asia
[11] Trading Economics, Malaysia Core Inflation Rate 2016-2020 data, macrotrends, Malaysia Inflation Rate 1960-2023, Malaysia Inflation Rate 1960-2024 | MacroTrends; Bank Negara Malaysia, Monetary and Financial Developments in June 2023, Monetary and Financial Developments in June 2023 - Bank Negara Malaysia (bnm.gov.my)
The Tribunal also notes that there is a safety net in Malaysia now as country information indicates that in October 2017, the government approved the introduction of unemployment benefits including allowances and support for training.[12]
[12] 2021 DFAT Country Report, DFAT country information report Malaysia
The Tribunal has also considered the 2024 BTI report on Malaysia which is more up to date but consistent with the above information. This indicates that Malaysia is on the cusp of crossing the World Bank’s high-income economy threshold, reflecting decades of relatively effective economic development. Extreme poverty is uncommon, and inequality is less pronounced than in many other contexts and fewer than one percent of Malaysians fall below the official poverty line. However, independent experts have argued that a more realistic monthly minimum income would place approximately 15 percent to 20 percent of the population in a state of precarity which is most prevalent in the East Malaysian states of Sabah and Sarawak, as well as among some indigenous communities with social mobility also being the lowest among those communities. The UNDP’s 2021/22 Human Development Report places Malaysia in the “Very High Human Development” category, reflecting strong outcomes in health, education, and standard of living. Within Southeast Asia, only the states of Singapore and Brunei Darussalam rank higher, with Malaysia well ahead of nearly all other regional neighbours. While the gap between the richest and poorest in society (as measured by the P90/P10 ratio) was higher in Malaysia than in most Asia-Pacific countries, according to World Bank data, it has fallen considerably in the past decade. Malaysia’s most recent Gini value was 41.2, according to World Bank data having reduced from a high of 49.1 in the late 1990s.[13]
Welfare regime in Malaysia
[13] Bertelsmann Stiftung, BTI 2024 Country Report Malaysia BTI 2024: Malaysia : BTI 2024 (bti-project.org)

The DFAT report indicates that financial support is available to the elderly and economically disadvantaged. As mentioned earlier, in October 2017, the government has also approved the introduction of unemployment benefits which include allowances and support for training. Businesses and NGOs also have various programs to support the poor; the ‘Mykasih program,’ a private sector program which is assisted by the government, also provides a platform to give food aid to the poor through a centralised system (the platform allows people to use their MyKad for payment at selected supermarkets).
The BTI report indicates that social safety nets are well developed but do not cover all risks for every stratum of the population. The social safety net is provided through three main pillars: direct government aid through cash handouts or in-kind benefits, including facilitated access to health care and education; social insurance schemes which offers a savings reserve that an be accessed during times of acute need or in retirement; and the primary schemes are the Employees Provident Fund (EPF) and Socso (Social Security Organisation. Labour market policies aid job seekers by providing employment opportunities, skill enhancement, or additional income. While most of these mechanisms are universal in principle, coverage is often limited in practice. For example, workers in the informal sector, small businesses, or the gig economy are typically not protected by EPF or Socso. In Malaysia, an employment insurance scheme provides supplemental income to help Malaysians cope with job loss, but a study from mid-July 2021 found that many retrenched workers had difficulty accessing funds. Additionally, some mechanisms are unavailable in rural areas. The pandemic revealed systematic weaknesses in Malaysia’s social safety nets and prompted reflection and numerous proposals for reform in 2022, including the establishment of a national social safety net that consolidates existing programs and coordinates between the ministries that deliver them. This would reduce overlaps and inefficiencies.
Corruption
The DFAT report indicates that corruption in Malaysia is a problem with Transparency International’s 2020 Corruption Perceptions Index ranking Malaysia 57th out of 180 countries and territories, a fall of six places on 2019. According to international observers, procurement is subject to corruption, and bribes and irregular payments are sometimes exchanged in return for favourable court decisions. One perceptions survey found that Malaysians regarded the police as the most corrupt institution in the country (see Royal Malaysia Police (RMP)), while another found that more than a third of Malaysians regarded Members of Parliament as corrupt, the highest level for any institution. Transparency International’s Corruption Barometer survey in 2020 found that 72 per cent of Malaysians consider corruption in the government to be a big problem and that 13 per cent had paid a bribe with respect to a public service in the last year. In recent years, the Malaysian Anti-Corruption Commission (MACC) has arrested hundreds of civil servants (467 in 2020, down from 525 in 2019). These arrests came from a variety of different areas within government. In 2020, several high-profile corruption trials of prominent political figures ended with Discharge Not Amounting to Acquittal (DNAA) verdicts, including one trial of former Minister Tengku Adnan Tengku Mansor in his MYR1 million corruption trial (though he was convicted of a separate offence in another trial). In this case, the order was granted after Deputy Public Prosecutor (DPP) Julia Ibrahim told the court she had received instructions from the Attorney-General’s Chambers (AGC) to seek the DNAA order citing new developments in the case that warranted further investigation. While a DNAA order does not prevent the prosecution from charging the accused again based on the same facts, some commentators have suggested that ending such cases without a definitive verdict and without hearing all the evidence delivers a form of impunity to those charged.[14]
[14] 2021 DFAT Country Report, DFAT country information report Malaysia
The BTI report indicates that Malaysia has a framework in place that is somewhat effective at containing corruption, but there are important gaps in the framework, and enforcement has been inconsistent in the past. The primary anti-corruption measures are articulated in the Malaysian Anti-Corruption Commission Act, which covers both the public and private sectors, and is overseen by the Malaysian Anti-Corruption Commission (MACC). It is supplemented by a range of additional legislation, including, for example, asset declaration requirements passed under the former PH government. Among the main gaps is the absence of a comprehensive political funding/financing law that regulates how political parties and individual politicians raise money for campaigning, day-to-day needs, and special initiatives. This creates a range of opportunities for misuse of funds, as well as perverse incentives to use public assets. The relative absence of transparency in government operations further impedes anti-corruption efforts. Ongoing problems with public procurement are responsible for extensive leakage and wastage in the federal budget, due primarily to weak oversight and the absence of a modern public procurement act. A 2013 report highlighted poor planning and formulation of specifications, inadequate use of competitive tendering, and flawed monitoring and evaluation as widespread; these areas have not significantly improved. Contracts are often awarded to politically connected companies in processes that lack transparency which create further opportunities for cronyism and corruption. Many Malaysians perceived political elites as largely immune to the consequences of corruption. Najib’s ongoing and high-profile political work while out on bail in 2021 and early 2022 while awaiting appeal for corruption-related convictions reinforced this perception. His imprisonment in August 2022 after losing his final appeal was unprecedented; never before has a former Malaysian leader faced such a punishment. It is unclear whether the same fate awaits others, including the UMNO president and (under Anwar) Deputy Prime Minister Zahid Hamidi, but the decisiveness of Najib’s jailing has changed the anti-corruption landscape in Malaysia.[15]
[15] Bertelsmann Stiftung, BTI 2024 Country Report Malaysia BTI 2024: Malaysia : BTI 2024 (bti-project.org)
FINDINGS AND REASONS
The Tribunal has regard to all material before it and relevant country information.
The Tribunal accepts that the applicant has a strong desire to remain in Australia and keep working. The Tribunal also accepts that the applicant has managed to repay all loans to friends, money which he used to come to Australia .
The Tribunal accepts that the applicant’s reason for coming to Australia in 2017 was due his inability to find secure work or earn sufficient income to survive. He believed that leaving Malaysia and coming to Australia was necessary because of the Malaysian economy and his inability to find secure employment.
The Tribunal notes that the applicant is [an age]-year-old man, and has managed to work while in Australia. He has shown initiative, adaptability and resilience in coming to Australia, a country with a different culture and language and was able to find accommodation and work. The Tribunal has discussed the country information regarding the improvement in the Malaysian economy and welfare provisions available to the applicant, if required. The applicant remained unconvinced that the economic situation had changed enough that he would be able to find work and be able to support himself and be able to support his daughter. The Tribunal accepts that due to his previous experiences in Malaysia, the applicant is pessimistic of his job prospects and his ability to secure a financial future for himself and his daughter. The Tribunal also accepts there is ongoing corruption in Malaysia which remains endemic. The Tribunal notes however that the applicant has been absent from his country since 2017 and the country information relied on by the Tribunal is consistent that there have been improvements in economy and to the standard of living in Malaysia as well as the introduction of welfare provisions to ensure the applicant is able to subsist. Further, his personal situation has now improved in that he has paid off his debts and managed to earn and speculate a substantial amount of money on [trading] which was unsuccessful.
The Tribunal assesses that there is no reason why he could not find work if he were to return to Malaysia. The applicant has family in Malaysia including his parents, his [siblings] and a daughter. He also has the option of returning to his parents while he settles and finds work. Therefore, Tribunal is not satisfied that the applicant would be homeless and/or be without food or other basic needs.
Based on all the available evidence, the Tribunal does not accept that any hardship and stress the applicant might suffer due to experiencing reduced economic circumstances on return to Malaysia would amount to serious harm. He has demonstrated his ability to find work in the past and could do so again. The Tribunal finds that there is nothing to suggest or indicate there is a real chance the applicant would suffer serious harm in the form of significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where denial threatens his capacity to subsist (as per the non-exhaustive examples of serious harm mentioned at s5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act (that is, his race, religion, nationality, membership of a particular social group or political opinion), should he return to Malaysia.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
The Tribunal accepts that the applicant came to Australia in 2017 because he wished to work and financially secure his future and be able to provide for his daughter. The Tribunal also accepts that he fears that he will not be able to find employment which pays sufficient wages to continue to support himself or his daughter. The Tribunal notes that the applicant has an extensive work history and a willingness to work and there is no reason why he could not do so if he returns to Malaysia. The circumstances in his country have changed while he has been in Australia and there has been an improvement in the Malaysian economy since he arrived here.
As discussed with the applicant, economic harm would not appear to be directed at him for reasons of his , religion, nationality, membership of a particular social group and/or political opinion for the purposes of the refugee criteria.
The Tribunal finds that this harm would not be for the essential and significant reasons of his race, religion, nationality membership of a particular social group and/or political opinion. Therefore, the Tribunal finds that the harm feared by the applicant would not amount to persecution for s 5J(1) of the Act.
Having carefully considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution now or in the reasonably foreseeable future in Malaysia.
For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criteria
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal notes that 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 relation to the ‘refugee criterion’.[16]
[16] 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 Jagot JJ at [297] and Flick J at [342]
Significant harm is exhaustively defined in s 36(2A); s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
The complementary protection criteria are therefore concerned with harm deliberately perpetrated upon another person by way of intentional acts or omissions.[17] Further, the economic and other forms of harm feared by the applicant would appear to be harm faced by the population of the country generally and not faced by the applicant personally. The Tribunal accepts that economic conditions and fluctuations in such conditions impact differently on people depending on their circumstances. It also accepts that the other forms of harm and adverse experiences the applicant fears may not be experienced equally by all members of the population. However, the applicant does not claim, and nor does the country information indicate, that any economic and other harm he might experience in Malaysia would be perpetrated against him through an intentional or deliberate act or omission by the government, private individual or other entity such as could constitute: arbitrary deprivation of life; cruel or inhuman treatment or punishment; degrading treatment or punishment or torture. The applicant did not claim that there is a risk that the death penalty will be carried out upon him.
[17] GLD18 V Minister for Home Affairs [2020] FCAFC 2
For these reasons the Tribunal does not accept that the economic and other harm that the applicant may experience in Malaysia would meet the definition of ‘significant harm’, as exhaustively defined in s 36(2A).
The Tribunal further finds that the risk of harm to the applicant arising from the economic conditions and other adverse experiences he fears are faced by the population of Malaysia generally, rather than by the applicant personally. In such circumstances s 36(2B)(c) operates to provide that there is taken not to be a real risk that a non-citizen will suffer significant harm in the receiving country.
Considering the applicant’s claims individually and cumulatively, 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 non-citizen will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Family membership
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophia Panagiotidis
Member

ATTACHMENT - EXTRACT FROM MIGRATION ACT 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4274

17 June 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Natural Justice