1822780 (Refugee)

1822780 (Refugee) [2024] AATA 934 (15 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1822780
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sydelle Muling
DATE:15 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2024 at 10:56am

CATCHWORDS
REFUGEE – protection visa – Malaysia – economic conditions and difficulty obtaining better job – education and employment history – difficulty not for reason related to refugee or complementary criteria – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
GLD18 v MHA [2020] FCAFC 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 23 July 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 31 January 2018.
The applicant appeared before the Tribunal on 13 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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.
CLAIMS AND EVIDENCE
The applicant is a [age] year old ethnic Malay male who was born in Sabah, Malaysia. According to his protection visa application, the applicant resided in Kota Kinabalu, in Sabah. He completed 9 years education and is fluent in Malay and can read English. The applicant described his occupation as [Occupation 1] and was employed in this position from June 2015 to July 2017. He departed Malaysia legally [in] November 2017 and arrived in Australia [in] November 2017 as the holder of an Electronic Travel Authority (Subclass 601) visa.
The applicant presented his claims in his protection visa application, summarised as follows:
·     He left Malaysia because he needed a job that offered a higher salary to enable him to help his family and himself and to also finance his sister’s schooling.
·     In the year before he came to Australia, it was very difficult for him to obtain a better job.
·     It was his dream to work in another country to get a new experience.
·     If he returns to Malaysia, he will experience the same problem he had before coming to Australia – difficulty getting a job and hard time covering the cost of living for both himself and his family.
·     His sister’s studies will also be disturbed.
The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 23 July 2018.
On review, in a pre-hearing information form completed by the applicant received by the Tribunal on 11 October 2023, he provided the following additional information about his situation in Malaysia, claiming in summary that:
·     His mother passed away when he was 5 years old, and his father worked as [an Occupation 2].
·     His father earns $200-$300 a week which is not enough to pay for food, education, and other expenses.
·     Since 2018, due to economic conditions, he decided to leave Malaysia because he could not find a job to support his family and his sister’s education.
·     Since arriving in Australia he has received many opportunities to work and has tried to save money for his sister’s education, which will help her to get a good job in the future.
·     For himself, he has saved money to buy a bus so he can have his own job when he returns to his country.
·     He is seeking permission to stay and work in Australia for a couple of years to achieve his goal and help his sister finish her studies.
On 5 December 2023, the applicant submitted a number of documents including several transfer confirmations of money transferred by him to his father between October 2022 and October 2023, bank statements for a bank account in the applicant’s name for the period 1 July 2022 to 31 December 2022 and 1 January 2023 to 30 June 2023, his father’s bank statement for the period October 2022 to September 2023 and a copy of his birth certificate.
The applicant appeared before the Tribunal on 13 December 2023 and gave oral evidence about his circumstances in Malaysia, the reasons he left the country and why he does not want to return there now. The evidence will be discussed below, in the analysis and findings.
CONSIDERATION OF CLAIMS AND EVIDENCE
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) 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s nationality is not in issue. He travelled to Australia on a valid Malaysian passport, a copy of which he provided to the Tribunal, and states that he is a national of Malaysia. The Tribunal accepts on the evidence before it that Malaysia is the applicant’s country of nationality or receiving country for the purposes of complementary protection.
At the hearing the applicant gave consistent evidence regarding the reason why he left Malaysia and why he does not wish to return. The applicant explained that he had been told by a friend that Australia was a peaceful and harmonious place, with a rich environment, and when he arrived here and saw how friendly people are and how easy it is to obtain a well-paid job, he believed it was the ideal situation for him to support his family in Malaysia. When asked why he does not want to return to Malaysia, the applicant discussed his ability to work in Australia to financially assist his family. The Tribunal accepts on the documentary evidence submitted by the applicant to the Tribunal that the applicant has been regularly sending money to his family in Malaysia while he has been living and working here. The Tribunal accepts the applicant’s evidence regarding the irregularity of his father’s income which is dependent on the number of passengers utilising his bus services. It accepts that the financial assistance provided by the applicant has been used by his family to buy food, to pay for repairs to his father’s privately owned bus and for his younger sister’s education. The Tribunal notes the applicant’s evidence in the hearing that his sister is due to complete her studies in March 2024.
The applicant provided clear evidence in the hearing that if he were to return to Malaysia nothing will happen to him except that he will have trouble obtaining a job because he did not complete his schooling. While the applicant’s protection visa application indicated the applicant had completed primary school and four years of high school, the applicant’s evidence in the hearing was that he had only completed up to Year 3 of primary school. Further, the applicant explained that he had taken the Malaysian certificate of education privately, after receiving private tuition over a period of 6 months in 2015. Although the Tribunal found the applicant’s evidence in the hearing regarding his education somewhat confusing, the Tribunal found the applicant to be a credible witness and is prepared to accept that he received limited education in Malaysia. The Tribunal accepts the applicant’s explanation for the inconsistency between his evidence in his protection visa application and at the hearing, that he was assisted in completing his protection visa application form and was not aware of what had been included in respect of his education details.
Although the Tribunal accepts the applicant may have only completed limited schooling as claimed, the Tribunal has taken into consideration the applicant’s evidence in the hearing regarding his past employment in Malaysia. The applicant claimed in the hearing that he worked as [an Occupation 3] at [workplace] since his teen years, for a period of five years. He then worked as a salesman in [a] shop for two years and after that he worked as [an Occupation 4] for two years. The applicant claimed he subsequently worked as [an Occupation 1] for a period of two years, up until he left Malaysia to travel to Australia. The Tribunal finds, that despite not completing his education, the applicant has been able to secure various jobs in the past in Malaysia. While the Tribunal accepts that the applicant may have experienced some difficulty in acquiring a better job in Malaysia than what he had, as he claimed in his protection visa application, considering the applicant’s past employment history overall, the Tribunal does not accept that the applicant will be denied employment on his return to Malaysia due to his lack of education, or that he would be unable to find any work in Malaysia on his return for this reason or any other reason.
The Tribunal accepts that the applicant wishes to remain in Australia because he can earn more here than he can in Malaysia in a higher paid position, and that he would like to continue to be able to earn additional money to help his family. The Tribunal accepts that economic conditions in Australia are more favourable to the applicant than those in Malaysia. However, as the Tribunal discussed with the applicant in the hearing, the difficulty he may experience finding a job in Malaysia which offers a higher salary, or a salary commensurate with what he has been earning in Australia, would not appear to be the result of or directed at him for reason of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal notes that the applicant agreed with this assessment.
The Tribunal finds any reduced earning capacity or other economic hardship the applicant may face on return to Malaysia would not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion. As such, the Tribunal finds that the applicant does not meet the criteria set out in s 5J(1)(a) of the Act.
Complementary protection
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.
The definition of significant harm in s 36(2A) of the Act, as set out in the attachment of this decision, incudes where a person will be arbitrarily deprived of life; or will have the death penalty carried out on them; or will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal accepts that the applicant wishes to remain in Australia so he can continue to work to help financially support his family and to also save money for his future, if and when he returns to Malaysia. The applicant spoke about his plan to purchase a bus for himself and to follow in his father’s footsteps. The Tribunal notes the applicant’s evidence in the hearing that he does not believe he will be harmed if he returns to Malaysia but that he will have trouble finding employment due to his limited schooling. However, as discussed above, prior to the applicant’s departure from Malaysia, he was employed in various positions between completing school and his departure from the country, over a period of many years.
As the Tribunal discussed with the applicant in the hearing, Australian courts have held that complementary protection obligations are concerned with intentional acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person[1]. The Tribunal does not accept that any reduced earning capacity or economic hardship the applicant might experience if removed to Malaysia would amount to significant harm for the purposes of the Act as it would not arise from the intentional or deliberate act or omissions of any group or person.
[1] GLD18 v MHA [2020] FCAFC 2.
CONCLUSION
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).
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).
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.
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.
…

[2024] AATA 934

15 January 2024

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