1824047 (Refugee)

1824047 (Refugee) [2024] AATA 4103 (23 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824047
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Helen Glass
DATE:23 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2024 at 2:32pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – left Malaysia for financial reasons – no real chance the applicant would suffer significant economic hardship – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 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 2 February 2018. The delegate refused to grant the visa on the basis that the applicant was not a refugee as defined by s 5H of the Act.
The applicant appeared before the Tribunal on 6 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s wife, who had filed her own separate application and claims. 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 (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 applicant is a [age] year old Muslim male from Malaysia. He came to Australia on [date] November 2017 as the holder of an Electronic Travel Authority (UD-601) visa. He applied for an XA-866 Protection visa on 2 February 2018.
The applicant initially presented his claims in his protection visa application in which he stated, that:
·He is the eldest son and his family needed financial help. His father was aging, and his younger brother had recently lost his leg in a motorbike accident, and it was amputated from the thigh. His parents could not afford the cost of a prosthetic.
·The Malaysian community will avoid a disabled person.
·The Malaysian economy is in crisis.
·He wished to ask protection from Australia so as to lighten his family’s burden.
The applicant was not interviewed and in summary the delegate found that the applicant’s claimed fear of harm in Malaysia is not for one of the s 5J(1)(a) reasons and was not satisfied that the applicant is a refugee as defined by s 5H(1) of the Act nor was the delegate satisfied that there was substantial grounds for believing that there was a real risk the applicant would suffer significant harm as outlined in s 36(2(aa).
The issues in this review are whether there is a real chance that, if he returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. The delegate did not indicate any issues with the applicant’s identity or nationality. Therefore, the Tribunal is satisfied the applicant is a national of Malaysia and has assessed his claims against Malaysia as his receiving country.
At the hearing the applicant gave evidence about his background, reasons for leaving Malaysia, and fears upon return now, summarised as follows. He said he was born in and grew up in Segamat Johor, where his parents and siblings currently live. He studied and completed secondary school in December 2003. He remained living with his parents and worked part time helping a brother run his [stall]. He has 4 siblings, the youngest lives at home, 2 live near the parents and one lives in Kuala Lumpur. He gave evidence of meeting his wife on 1 April 2012 and they married on [date] September 2017. After their marriage, the applicant moved in with his wife to her family home where her parents lived and her seven brothers. His wife is [Ms A] born [date] and she is also a Malaysian national.
A row began between the applicant’s wife and the wife’s eldest brother, because the applicant’s wife asked her brother for money to assist her former carer who was in poor health. The applicant was not working at this time. The eldest brother thought that the applicant should provide the money sought by his wife and told them to leave the house or they would be beaten. The applicant and his wife left and went to live with the applicant’s parents whom he said welcomed them. They discussed coming to Australia to avoid further conflict with the wife’s family and the applicant wanted ‘to try his luck’. They raised the money for fares and set up costs from the applicant’s family. His wife agreed with this evidence.
The applicant and his wife arrived in Australia on [date] November 2017. The applicant found work on [a farm] and they lived in [a suburb].
The applicant’s visa was refused on 23 July 2018. He lodged an application for review on 19 August 2018. In his pre-hearing information form he set out the following claims in response to the questions ‘do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country’?
The applicant responded in writing as follows ‘I left Malaysia because my family requires financial assistance. my aging family and one of my brother needs prosthetic leg. As eldest son in my family, I am responsible for providing financial support to them’. The applicant added that he felt stressed because of being jobless and not being able to give financial support to his family and was tired of struggling with money problems. He advised that he felt better in Australia because of the better job opportunities for him. He added that ‘my mind feels so ease and calm to be here’.
The applicant’s oral evidence confirmed that he had lived with his parents and disabled brother until he married and then lived with his wife’s family, that is her parents and 7 siblings for 2 months, until the applicant and his wife resumed living with the applicant’s family. The applicant and his wife had by then, been granted visas to visit Australia.
He and his wife wanted to ‘preserve peace’ so it was the preferable course of action to come to Australia. They admitted that they did not know anybody in Australia.
The applicant had not provided an employment history and completed his education at the conclusion of secondary school. He admitted in the pre-hearing information form that he left Malaysia for financial reasons because his family requires financial assistance. He did not raise fear of physical harm from his wife’s family, nor did he give evidence of being physically harmed, only of having been threatened if he and his wife did not leave the family’s home. In Australia he has found work and is currently employed as a [occupation].
The Tribunal considered the threats made towards the applicant from his wife’s family but noted that the threats were in relation to living in his wife’s family home. The Tribunal has found that such threats did not extend to the applicant living with his own family.
The Tribunal notes that the applicant’s stated reason for coming to Australia is to benefit his family financially.
The Tribunal accepts the applicant’s oral evidence about his background and work history and accepts that he has been able to work in Australia and send money back to his parents. He has had work experience in Australia. He has been in Australia since November 2017 and employable since February 2018. He does not claim to have suffered harm in Malaysia apart from being threatened by his wife’s family if he returned to live at her family’s home. This threatened harm did not extend to him living in his family home.
The applicant’s inability to help financially support his parents and siblings who are all adults and not applicants in this case does not constitute persecution or significant harm. However, the Tribunal accepts that this situation would have caused him stress and while the Tribunal accepts that the applicant would like to remain in Australia because he can earn more money to assist his family, the Tribunal finds there is nothing before it to indicate or suggest that the applicant will be denied the opportunity to work in Malaysia for any reason. DFAT in its most recent country information report on Malaysia states that the World Bank classifies it as an upper middle-class export-oriented economy and that its economic performance over several decades has led to a significant reduction in poverty. The Tribunal noted at the hearing that the applicant has made 3 holiday trips to [a country], the last one being a honeymoon trip. Based on such country information and considering the factors in this case the Tribunal is satisfied that the applicant would be able to subsist on return to Malaysia despite the applicant’s concerns about the Malaysian economy and his particular circumstances. Given these above considerations, the Tribunal finds there is no real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist nor would he be denied access to basic services where the denial threatens his capacity to subsist as per the non-exclusive examples of serious harm mentioned at s 5J(5)(d-(f) of the Act for one or more of the reasons mentioned at s 5J(1)(a) of the Act should he return to Malaysia.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Malaysia and the Tribunal therefore finds that Malaysia is the ‘receiving country’ for the purposes of s 5(1).
For the reasons set out above the Tribunal has found there is not a real chance the applicant will experience significant harm on the basis of being unable to subsist or for any economic related reason, if he returns to Malaysia now or in the foreseeable future.
‘Significant harm’ is exhaustively defined in s 36(2A) of the Act. 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. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34). A real risk or a real chance is one that is not remote or insubstantial or a far-fetched possibility.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
The applicant’s claimed economic hardship is due to the particular circumstances of his immediate family. 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 a receiving country, there is a real risk that he will suffer significant harm at the hands of others.
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.
Helen Glass
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 4103

23 August 2024

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