1823413 (Refugee)

1823413 (Refugee) [2024] AATA 2568 (18 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1823413

COUNTRY OF REFERENCE: Malaysia
MEMBER:Ben Goulding
DATE:18 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2024 at 9:53am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – disability – motor vehicle accident in Australia – threats against the applicant’s family – economic conditions – employment – mental health services – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
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 31 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 2 May 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 18 December 2023 and 1 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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). 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 (DFAT) 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 is a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s personal background
The applicant is [an age]-year-old male from Kedah state, Malaysia. He is of Chinese ethnicity and Buddhist religion.
The applicant travelled to Australia on an apparently genuine Malaysian passport. A copy of the biodata page of the passport is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
At the first hearing, the applicant confirmed that he is married and has a son who has turned [age]. Both his wife and son are residing in Malaysia. The applicant’s relationship with his wife has broken down and they are no longer in contact with each other. The applicant said he and his wife have separated but not divorced. The applicant’s son lives with his maternal grandmother. The applicant described his relationship with his son as being bad and they rarely speak. Despite this, the applicant continues to send financial support to his son via the applicant’s mother. The applicant is in contact with his mother on a regular basis.
The applicant gave evidence that he completed school and enrolled in a [Course 1] at [University 1]. On completion of his studies, the applicant resided in Selangor. He was employed from [specified year] until 2008 as an [occupation 1] for a [business 1]. From 2009 to 2013 he was employed as [an occupation 2] for [a business 2] company. Between 2014 and 2018, the applicant ran his own business in the [business 2] industry which was similar to the business he had worked for immediately prior.
The applicant arrived in Australia as the holder of a visitor visa [in] March 2018. Following his arrival in Australia, the applicant was involved in a serious car accident in July 2018. Due to his injuries, he was unable to work for an extended period. In about 2020 or 2021, the applicant commenced a job working for a [business 3].
The applicant’s claims for protection
In his protection visa application form lodged with the Department on 2 May 2018, the applicant claimed that he left Malaysia as he was facing financial difficulties due to the economic situation and debt issues. He stated that he had to leave Malaysia for better opportunities, and he hoped to find a good job to support his family. The applicant also stated in his protection visa application that he may not be harmed if he were to return to Malaysia, but his economic and financial issues will continue.
The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of his claims. The delegate refused the applicant’s protection visa application on 31 July 2018 on the basis of not being satisfied that he had a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The delegate also considered the applicant’s claims under the complementary protection criteria and determined that the economic situation in Malaysia affected all Malaysians and not the applicant personally. The delegate also found that any economic hardship suffered by the applicant if he returned to Malaysia would not amount to significant harm.
The applicant appealed the Department’s decision to the Tribunal on 13 August 2018. On 3 August 2023, the applicant provided further information to the Tribunal in response to the Tribunal’s pre-constitution outreach. In that response, the applicant outlined that he was involved in a major car accident in 2018. As a result of the accident, he sustained [a specified injury] and spent more than two years in rehabilitation.
At the first hearing, the Tribunal provided a summary of the protection claims included in the applicant’s protection visa application. The applicant broadly agreed with the summary but clarified that the reason he fled Malaysia was due to his debts as he had borrowed money from a private moneylender rather than a bank. The applicant went on to say that the car accident is a new reason that he is seeking protection as he is now partly disabled.
At the conclusion of the first hearing, the applicant was invited to provide medical evidence to support his claim to having a disability. Following receipt of the medical evidence, the applicant was invited to a second hearing on 1 March 2024.
The applicant’s claims are discussed in more detail below.
Claim relating to money borrowed from a moneylender
i.Claims and evidence before the Tribunal
At the first hearing the applicant gave evidence that he ran his own [business] between 2014 and 2018. As a result of financial difficulties that his business experienced, he took out a loan with a private moneylender. At the time, the applicant owed multiple debts to other businesses that were suppliers to his own business. The applicant claimed that due to his poor business records, he was unable to borrow money from a bank. As a result, the applicant borrowed about MYR[amount] (AUD[amount])[1] from a private moneylender. The interest rate for the loan was about 12% per month. The applicant could not recall the exact amount that he borrowed from the moneylender as he owed multiple debts at the time. The various debts that the applicant owed to his suppliers and the moneylender were incurred between about 2015 and 2017.
[1] Xe Currency Converter, 18 March 2024, <>
The applicant was unable to recall specific details about how much of the loan from the moneylender he had repaid or how frequently he was making repayments. In this regard, the applicant’s evidence was at times inconsistent. At the second hearing, the applicant said that the loan amount was only MYR[amount], but he could not remember clearly and was confused due to the interest that was payable. At one point during the first hearing, he indicated that he was not able to make any repayments; however, he also said that he was able to make some repayments but was only able to pay the interest on the loan. In any event, it is clear that the applicant was unable to consistently make the minimum repayments whilst in Malaysia.
The applicant claimed that when he failed to make repayments, the moneylender threatened him and made threats against his family. The applicant’s evidence regarding the nature of the threats was somewhat vague. He indicated that he didn’t know what would happen if he was unable to repay the money, but it was life threatening. In relation to his family, he claimed that the moneylender said his family would be impacted but they didn’t specify what they would do. When asked if he reported the issue to the police, he said he did not consider doing so because borrowing money from such lenders is not lawful and he was concerned about going to the police. The applicant also said he had never thought about whether there was anywhere in Malaysia that he could relocate to in order to live safely.
The applicant stated that upon arrival in Australia, it was his intention to repay the money borrowed from the moneylender. The applicant arrived in Australia [in] March 2018, and on 30 July 2018 he was involved in a motor vehicle accident whilst at work. As a result of his injuries and ongoing rehabilitation, he was unable to work for an extended period. The applicant claims he required more than two years of rehabilitation and is still not fully recovered. The applicant also indicated that the COVID-19 pandemic impacted his ability to find work. He resumed working in about 2020 to 2021.
Since resuming work, the applicant has not continued paying the debt as he has not had contact with the moneylender since arriving in Australia. When asked whether the moneylender had contacted his family since he arrived in Australia, the applicant said they had not contacted his mother. The applicant no longer communicates with his wife, and he does not know if she has been contacted by the moneylender.
The Tribunal finds that some of the applicant’s confusion and lack of detail in his evidence is likely due to him owing multiple debts – all of which he was unable to pay. In this regard, the applicant provided a frank assessment of his business at the time, describing it as a failure. The applicant also stated that his wife left him because he was not able to pay his debts. Additionally, as outlined above, the applicant was involved in a serious motor vehicle accident soon after arriving in Australia and it is evident that much of his focus following the accident was on his own rehabilitation. Given the totality of the applicant’s circumstances, the Tribunal accepts that the applicant did borrow money from a moneylender despite the lack of detail and occasionally vague evidence regarding this claim.
Country information suggests that borrowing money from illegal moneylenders (also referred to as loan shark) can result in harassment, threats, and violence towards the borrower and their family. In this regard, DFAT reports that:
Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 29 June 2021 (2021 DFAT Report), at [3.112].
Given the available country information, it follows that if the applicant did owe money to a moneylender and he was unable to pay, the moneylender may have made threats against the applicant. However, the Tribunal also notes that on the applicant’s own evidence there have been no further threats made to the applicant since he arrived in Australia in 2018. Those threats made to the applicant prior to his arrival in Australia appear to have only been verbal, insisting that the applicant should repay the loan.
The Tribunal discussed with the applicant information contained in the current DFAT report for Malaysia regarding the situation for victims of loan sharks. The Tribunal noted that DFAT reports that the authorities in Malaysia tend to be ‘unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice’.[3] However, DFAT also reports that:
The Malaysian Chinese Association’s Public Services and Complaints Department (PSCD) plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year. … Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the government rate.[4]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 29 June 2021 (2021 DFAT Report), at [3.113].
[4] 2021 DFAT Report, at [3.114].
The Tribunal also discussed with the applicant that DFAT reports that:
The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a significant fine or a jail term of up to five years, or both. Police have made several recent high-profile arrests and investigations of syndicates.[5]
[5] 2021 DFAT Report, at [3.116].
The applicant responded that he is still concerned about what the moneylender will do to him if he returns to Malaysia, however, he went on to say that he has now been in Australia for a long time, so he really doesn’t know what might happen. Separately, the applicant gave evidence that he is still fearful of the moneylender, however, when asked if the moneylender would want to harm him if he returned to Malaysia, the applicant said he was not sure what would happen if he was found. He also conceded that he was not sure if the moneylender would be able to find him. At the second hearing, the applicant confirmed that he is still worried about the debt.
The applicant has not claimed to fear harm from the business suppliers that he owes money to. When asked directly about the suppliers, the applicant confirmed they have not threatened him.
ii.Findings and reasons
The Tribunal accepts that the applicant borrowed money from a moneylender and that the applicant and his family were threatened when he fell behind in his repayments. Furthermore, the Tribunal accepts that the applicant’s fear of harassment from the moneylender or their associates was a key motivation for the applicant leaving Malaysia and seeking protection in Australia.
Based on his evidence, the applicant fell into debt between 2015 and 2017. The applicant said he provided a copy of his identity documents when he took out the loan with the moneylender. Based on the applicant’s evidence, throughout the period that he was in debt, he resided at the one location in Petaling Jaya, Selangor. The applicant claims to have been threatened by the moneylender a few months before he came to Australia [in] March 2018. At the second hearing, the applicant said that he had not heard from the loan shark since 2016 or 2017. Even on the most conservative of timeframes, there were several months where the applicant was unable to make the minimum repayments and his whereabouts would have been reasonably known to the moneylender. Despite this, no steps were taken by the moneylender to act on any threat.
Additionally, whilst the Tribunal accepts that threats were made against the applicant’s family, there is no evidence to suggest that these threats have been acted upon or that the moneylenders have attempted to contact the applicant through his family. The applicant confirmed that he speaks to his mother regularly and the moneylenders have not contacted her since he arrived in Australia. The applicant is not in regular contact with his son, however, at the second hearing, the applicant confirmed that his son has not been contacted by the moneylender. Whilst the applicant does not have contact with his wife, given the applicant has some contact with his son either directly (albeit only limited contact) or through his mother, it is plausible that had his wife been threatened or harmed, then this information would have been passed on to the applicant.

Furthermore, it has now been nearly six years since the applicant left Malaysia. Whilst the date of last contact with the moneylenders is somewhat unclear, it is evident that there has been no contact since about 2017. During this time, the applicant has not made repayments of the loan and there is no evidence to suggest that the moneylenders have attempted to contact the applicant either directly or through his family.
Given the passage of time and the moneylender’s apparent lack of efforts to pursue the debt to date, the Tribunal does not accept that the moneylender would now actively pursue the applicant to seek repayment of the loan. As a consequence, the Tribunal does not accept that the applicant faces a real chance of serious harm at the hands of the moneylender or any person acting on their behalf, now or in the reasonably foreseeable future, for the reasons outlined above.
The Tribunal has also considered 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 such that he meets the complementary protection criterion under s 36(2)(aa). 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 the Refugee definition.[6] For the reasons given above, the Tribunal has not accepted that the applicant’s claims reach the level of a ‘real chance’. It follows that the Tribunal is not satisfied 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 on the same basis.
[6] 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], Flick J at [342].
Claims relating to economic harm
In his protection visa application, the applicant claimed that the slow economy in Malaysia contributed to his financial problems. At the first hearing, the applicant also expressed concern about his ability to obtain a job as a result of the injuries he sustained in the car accident in Australia.
The Tribunal has considered the applicant’s claims that he will suffer economic harm if he were to return to Malaysia. These are covered in detail below.
Claims on account of the applicant’s disability
i.Claims and evidence before the Tribunal
The Tribunal accepts that upon arrival in Australia, the applicant intended to work and repay the debts he owed in Malaysia. At the hearing it was put to the applicant that such economic harm would not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. The applicant did not directly respond to this information; however, he did say that getting a job would be ‘challenging’. This assertion was in the broader context of the applicant suffering from ongoing physical issues as a result of the injuries he sustained in the car accident in 2018. The applicant also claimed to now be partly disabled.
The applicant gave evidence that in the car accident he [suffered specified injures]. He claimed that this has impacted his day-to-day life and he now lacks energy, cannot run, cannot undertake labouring work, including lifting heavy objects, cannot stand for long periods, he is slower, less agile, and it has impacted the way he walks. He also claimed that he now suffers from discomfort which requires pain relief. The applicant said he may require further surgery.
The applicant was invited to provide evidence of his medical condition. On 2 February 2024, the Tribunal received a bundle of documents from the applicant which consists of 960 pages of the applicant’s medical records from [Hospital 1]. In summary, the medical records confirm that the applicant suffered [specified fractures], amongst other injuries. Whilst a specific prognosis regarding the impact that the injuries will have on the applicant’s long-term health is not available, there are several instances where the medical records note that the applicant suffers from ongoing pain. The medical records also indicate that an ongoing program of rehabilitation and exercise is recommended. For instance, in a letter dated 19 July 2019, a physiotherapist from [Hospital 1] reported as follows:
[the applicant] has progressed very well through his exercise program and physiotherapy. He will continue to benefit from participating in [an exercise] Group at [Hospital 1] (as was previously attending). He is now discharged from one on one Physiotherapy and Hydrotherapy. Following Exercise Physiology and, while still attending the Running Group, [the applicant] will be set up at a gym program in the community where he will be provided with an exercise program.[7]
[7] Applicant’s medical records, 859.
Based on the medical records and the applicant’s own evidence at both hearings, the Tribunal accepts that the applicant was involved in a car accident and suffered serious injuries which required extensive rehabilitation. Furthermore, the Tribunal accepts that the applicant is experiencing ongoing physical difficulties associated with those injuries. For the purpose of this proceeding, the Tribunal is satisfied that the applicant suffers from a mobility impairment or disability that would affect his ability to perform certain types of manual work or, alternatively, require modification to certain elements of any manual work undertaken. The Tribunal also accepts that the applicant may require ongoing medical attention, including pain relief, further surgery, physiotherapy, and other related treatments.
At the first hearing, the Tribunal discussed with the applicant the impact his injuries have had on his ability to work, including in his current role working in a [business 3]. The applicant outlined that since commencing his job in 2020 or 2021, he has had to perform his duties differently to other workers. He said the job is relatively more difficult for him, but he is still able to undertake the work. During the hearing, the applicant indicated that it may be difficult for him to find employment in Malaysia, saying that he doesn’t know if he will be able to get a job if he returns there.
In a Workplace Assessment Report that was conducted on 9 April 2019, the assessor determined that no suitable duties were identified at the applicant’s pre-injury workplace.[8] In a letter from the workplace assessor to the applicant on 23 September 2019, the assessor provided an update regarding their consultation with the applicant’s physiotherapist. In that letter, the assessor notes the following from the physiotherapist:
[the applicant]’s progress was going well however he was still presenting with moderate to severe [specified] pain [and the physiotherapist] advised she was referring [the applicant] for a further 12 weeks of the running program at [Hospital 1] as well as referring him for one on one sessions with a private physiotherapist …
[the applicant] would be recommended to secure employment where he is able to avoid prolonged standing/ walking and is able to break up sitting for long periods of time… [the applicant] would additionally be recommended to pursue employment that did not involve heavy lifting
[the assessor] enquired as to [the physiotherapists] opinion on the employment options listed on the CSS Report including Product Assembler, Data Entry Operator, Customer Service Representative, Sales Representative and Forklift Driver. [The physiotherapist] noted she did not feel confident to provide advice on specific employment options however noted she believed the options would be suitable expect for that of a Sales Representative which she was concerned would require too much walking.[9]
[8] Applicant’s medical records, 873.
[9] Applicant’s medical records, 849.
In relation to the employment situation in Malaysia, the Malaysian Department of Statistics reported in February 2021 that there was a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent.[10] The most recent data from the World Bank in 2022 indicates that Malaysia’s unemployment rate was 3.7 per cent.[11] In 2019, prior to the pandemic, Malaysia's unemployment rate was 3.3 percent.[12] In November 2018, media reported that the average unemployment rate for Indian Malaysians was 4.7 per cent and for Bumiputera it was for 4 per cent. Whereas for Chinese Malaysians, it was reported that the rate was 2.4 per cent.[13] However, overall, Malaysia’s economic outlook appears to be somewhat mixed with DFAT reporting that whilst economic growth is relatively strong, there remain significant inequalities within the economy:
The World Bank classifies Malaysia as an upper middle-income, export oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. …
According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.
Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. 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. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.[14]
[10] 2021 DFAT Report, at [2.13].
[11] The World Bank, Unemployment, total (% of total labor force) (modeled ILO estimate) – Malaysia, 5 September 2023, < 2021 DFAT Report, at [2.13].
[13] Ibid
[14] 2021 DFAT Report, at [2.9]-[2,11].
In relation to the applicant’s medical care, the Tribunal questioned the applicant as to whether he would be able to access treatment if he returned to Malaysia. The applicant confirmed that he believed treatment would be available. In this regard, DFAT reports that:
Malaysia spends approximately 3.9 per cent of GDP a year on health (roughly half public and half private), and has recorded significant improvements in health standards in recent decades. …
Malaysia has a well-established universal health care system, accessed by around 78 per cent of the population, and modelled on the United Kingdom’s system. Malaysia’s two-tiered health system consists of nation-wide public health care centres and hospitals administered by the Ministry of Health, and a growing private health sector, which predominantly offers services in urban areas. Primary healthcare treatment or a first line treatment via public healthcare would incur a fee ranging from MYR1 – MYR5 (approx. AUD0.30 to AUD 1.6) per visit, and a visit to a private GP would cost MYR30-MYR125 (AUD 9.50-AUD40). Health care is generally accessible to all residents in urban areas in peninsular Malaysia, with health facilities generally available within five kilometres of residence.[15]
[15] 2021 DFAT Report, at [2.22].
At the second hearing, the applicant was questioned further about whether he would face discrimination on account of his disability. The applicant stated that people could tell by the way he walks and the way he lifts objects that he has a disability. The applicant said that in Australia he has not observed any discrimination on account of his disability, but he is unsure what will happen in Malaysia as he has not resided there since his accident. The Tribunal also asked the applicant how people with disabilities are treated in Malaysia. The applicant responded that he does not know how they are treated.
Whilst the applicant has not made any express claims of fearing discrimination on account of his disability if he were to return to Malaysia, for completeness, the Tribunal has considered whether the applicant would face discrimination. In this regard, DFAT reports that:
People with disabilities were also hit hard by the economic impact of COVID-19 due to the typically more insecure and public-facing nature of their employment. UNICEF reports that people living with disabilities, especially children, are often hidden, portrayed negatively or excluded from society, face daily stigma and discrimination, and are prevented from accessing their rights due to gaps in legislation.[16]
ii.Findings and reasons
[16] 2021 DFAT Report, at [2.25].
As noted above, the Tribunal accepts that medical evidence provided by the applicant and accepts that the applicant suffers from a mobility impairment or disability as a result of the accident that occurred in Australia. Additionally, it is accepted that people with a disability or impairment may be considered a particular social group in Malaysia, and that the applicant may be considered a member of this particular group.
The Tribunal also accepts that it may be somewhat difficult for the applicant to initially find work if he were to return to Malaysia, particularly given the limitations on the work he can undertake and due to him having been outside the country for several years. However, the applicant holds a bachelor’s degree and, despite the financial difficulties of his business in Malaysia, he has a good work history, having been employed in Malaysia in [managerial] roles in the retail and [business 2] industries for about 10 years prior to starting his own business in 2014 – roles which do not typically involve manual labour. Additionally, whilst the applicant’s physiotherapist recommended in September 2019 that he ‘pursue employment that did not involve heavy lifting’,[17] the applicant has been able to undertake manual work in Australia in a [business 3] with modifications to the role since 2020 or 2021. Notwithstanding this, the Tribunal accepts that due to his injuries, the applicant may not be able to undertake work that involves harder physical labour.
[17] Applicant’s medical records, 849.
For s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:
(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.
Given the available country information and the applicant’s evidence in relation to his work history in both Malaysia and Australia, the Tribunal finds that the harm feared by the applicant does not amount to serious harm in the sense that the applicant will not experience significant economic hardship or deny him the ability to earn a living that threatens his capacity to subsist, or deny him access to basic services, where the denial threatens his capacity to subsist.
In relation to medical treatment, the Tribunal accepts that the applicant might prefer to access treatment in Australia, however, he has not made any claim that he would not be able to access appropriate treatment in Malaysia for any reasons, including those set out at s 5J(1)(a) of the Act. Rather, the applicant indicated that he believed he would be able to access treatment in Malaysia.
The Tribunal does accept that there is a level of discrimination directed at persons with disabilities in Malaysia. The Tribunal also acknowledges that the applicant’s injuries have impacted upon his life in a negative way. However, given his overall profile and the extent of his injuries, the Tribunal finds that the applicant’s impairment or disability is not such that there is a real chance of him experiencing discrimination such as that described in the country information above. In this regard, the applicant’s own evidence is that his disability or impairment primarily impacts his mobility when walking and ability to undertake some manual work.
The list of instances of serious harm in s 5J(5) is not exhaustive, however, in the particular circumstances of the applicant, the Tribunal does not accept there to be a real chance that the applicant will be subjected to ‘serious harm’ for the purposes of s 5J(5) for reasons of his disability or impairment if he returns to Malaysia now or in the foreseeable future. It follows that the Tribunal does not accept that the applicant meets the criteria set out in s 5J(4)(b).
Given the above, when considered individually and cumulatively, the Tribunal is not satisfied that the applicant, has a well-founded fear of persecution, now or in the reasonably foreseeable future, in Malaysia for reason of his disability or impairment. As such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
In considering whether economic and other forms of harm that the applicant fears would amount to significant harm in the complementary protection criterion under s 36(2)(aa), the Tribunal has had regard to the definition of ‘significant harm’ as exclusively defined in s 36(2A), as follows:
(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.
As noted above, the Tribunal accepts that people with a disability or impairment in Malaysia may be subjected to a level of discrimination. However, the applicant does not claim, nor does the country information suggest, that the harm described by the applicant in Malaysia could amount to significant harm for the purposes of s 36(2A) of the Act.
The applicant has not claimed, nor is there any suggestion, that any person or group will seek to arbitrarily deprive him of his life or subject him to torture, nor that he would be subject to the death penalty. The tribunal also notes the following:
a.Cruel or inhuman treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or 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.
b.Degrading treatment or punishment is also exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

Whilst the Tribunal accepts that there is a level of discrimination directed at people with a disability in Malaysia and that the applicant may experience some difficulties in obtaining employment upon initially returning to Malaysia, the Tribunal does not consider that in the particular circumstances of the applicant, such treatment rises to the level of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as those terms are defined given the nature of his injuries and his proven ability to find work since the accident.
For these reasons the Tribunal does not accept that the harm described by the applicant constitutes serious or significant harm for the purposes of s 36(a) or s 36(2)(aa).
Claims of economic harm due to the general economic situation in Malaysia
As outlined above, the applicant put forward a claim related to the general economic situation in Malaysia. At hearing, the applicant elaborated on this claim and said that when he had financial issues in Malaysia he was in his [age range] and it was hard for him to gain employment due to competition from people who had just left school. He also claimed that he did not have any real experience in [the field] in which he studied at university, so it would be difficult for him to find a job.
For the reasons outlined above, the Tribunal accepts that it may be somewhat difficult for the applicant to initially find work if he were to return to Malaysia. The Tribunal also accepts that job competition may also limit his income-earning capacity upon return to Malaysia. However, the applicant is still relatively young and has a solid work history despite the issues he had in his own business. There is no evidence before the Tribunal that would indicate that he would not be able to find a job if he were to return to Malaysia. Rather, given the country information referred to above and the applicant’s own evidence, the Tribunal does not accept that the applicant would be denied the capacity to earn a living of any kind or suffer economic hardship such as would threaten his capacity to subsist.
Additionally, the Tribunal put to the applicant at the hearing that the general state of Malaysia’s economy applies to the entire population and any harm arising from this would not appear to be directed at the applicant for reasons of his race, religion, nationality, membership of a particular social group and/or political opinion. In response, the applicant said he considers himself lucky to have a job. Notwithstanding this, the Tribunal finds that the feared economic harm on account of the general economic situation, including competition from younger workers, is not for the essential and significant reasons of the applicant’s race, religion, nationality, membership of a particular social group or political opinion. Therefore, the applicant does not meet the criterion set out in s 5J(1)(a) of the Act.
In considering whether the applicant meets the complementary protection criterion, the Tribunal finds that the risk to the applicant on account of the general economic situation and employment competition in Malaysia is one faced by the population of Malaysia generally, rather than by the applicant personally. In such circumstances s 36(2B)(c) has the effect that there is taken not to be a real risk the applicant will suffer significant harm.
The applicant’s mental health
Whilst the applicant did not directly raise any claims relating to his mental health either in his protection application or at the first hearing, the medical evidence provided by the applicant notes that he completed a ‘DASS’ (Depression, Anxiety, Stress Scale) and ‘PCL’ (post-traumatic stress disorder (PTSD) checklist) on 15 November 2018. The applicant’s responses indicate as follows:
depression in the severe range, anxiety in the extremely severe range and stress in the mild range. Responses to the PCL indicate that he is experiencing some symptoms consistent with PTSD, but not enough to warrant a diagnosis at this point in time.[18]
[18] Applicant’s medical records, 351.
Following this assessment, the applicant was placed on a depression/anxiety management plan. Again, the Tribunal does not have a definitive report containing a diagnosis or prognosis on which to base its assessment. However, given the evidence before it, the Tribunal accepts that the applicant suffered from and may continue to suffer a mental health condition or mental illness.
The applicant was invited to a second hearing to comment on the above medical evidence and to discuss relevant country information.
When asked about his mental health issues at the second hearing, the applicant stated that he had previously enjoyed sports and living a normal life and the accident had made him feel sad and it had an emotional impact. The applicant said that he cannot completely accept how the accident has changed his life.
When asked about his mental health treatment, the applicant recalled that he spoke to a psychiatrist but did not remember taking any medicine. He also confirmed that he is not currently receiving any mental health treatment. When asked about his mental state now, the applicant reflected that he does not know where the problem is, but he feels different.
When asked if he would be able to access mental health treatment in Malaysia, the applicant initially said ‘certainly’. Following this, the Tribunal put to the applicant that it understands from country information that mental health treatment is less available in Malaysia than it is in Australia. The applicant responded that he had not previously experienced mental health issues in Malaysia, but Australia is more advanced than other countries. When asked again if he would be able to access mental health services in Malaysia, the applicant said it was difficult to judge.
The Tribunal then asked the applicant whether he would likely experience any discrimination in Malaysia as a consequence of his mental or physical health. In response, the applicant said that he had only remembered his mental health issues because he was reminded of it by the Tribunal. Otherwise, the applicant said his issues related to his physical health (refer to above assessment of physical disability).
The Tribunal has considered whether the applicant would be able to access treatment for his condition if he were to return to Malaysia. According to a study published in the BJPsych International Journal in November 2021, there are 410 registered psychiatrists in Malaysia, which equates to a ratio of 1.27 psychiatrists per 100,000 population.[19] The same report also noted that Malaysia has 22 community-based specialist mental health services, 958 mental health day centres, four mental hospitals and 47 psychiatric in-patient units attached to general hospitals.[20] This largely aligns with the current DFAT report for Malaysia which assessed that:
Due to a lack of mental health professionals, public services are generally provided by general practitioners and non-mental health specialists. Private mental health services can cost upwards of MYR300 (AUD95) per consultation. Because most private health insurance does not cover mental health services in Malaysia (as of July 2019, Malaysia AIA became the only such company to provide coverage), access can be cost prohibitive.[21]
[19] Raaj S, Navanathan S, Tharmaselan M, Lally J, ‘Mental disorders in Malaysia: an increase in lifetime prevalence’, BJPsych Int. 2021 Nov;18(4):97-99. Jdoi: 10.1192/bji.2021.4. PMID: 34747937; PMCID: PMC8554924 (BJPsych Int).
[20] Ibid
[21] 2021 DFAT Report, at [2.26].
The report from BJPsych International also found that ‘there has been clear legislative policy and organisational development to improve Malaysia’s mental health services delivery’.[22] However, it concludes that:
Social stigma and lack of awareness about mental health problems remain significant barriers to improving mental healthcare, and national mental health education programmes are required to address this. Increased mental health spending provision will be needed to address deficiencies in service availability and delivery and to increase the proportion of psychiatrists and mental health clinicians in Malaysia. [23]
[22] BJPsych Int
[23] Ibid
Given the available country information and the applicant’s personal circumstances, the Tribunal finds that the applicant would be able to access mental health services to the same level as other Malaysians if he were to return to Malaysia.
The Tribunal accepts that the standard of mental health services and availability may not be to the same level as those available in Australia. However, in the absence of evidence to the contrary and based on available country information and the particular circumstances of the applicant, the Tribunal does not accept that there is a real chance the applicant will be seriously harmed if he returns to Malaysia by reason of him suffering from a mental health issue or mental illness.
As the threshold for ‘real risk’ in s 36(2)(aa) of the Act is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a),[24] the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm from any person for reasons of his mental health as a necessary and foreseeable consequence of being removed from Australia and returned to Malaysia.
[24] 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], Flick J at [342].
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ben Goulding
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 2568

18 March 2024

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