1824779 (Refugee)
[2024] AATA 2703
•28 March 2024
1824779 (Refugee) [2024] AATA 2703 (28 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1824779
COUNTRY OF REFERENCE: Malaysia
MEMBER:Ben Goulding
DATE:28 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 28 March 2024 at 11:14am
CATCHWORDS
REFUGEE – protection visa – Malaysia – failed investor scheme – threats made against the applicant and his family – money owed has been paid back – feared economic harm on account of the general economic situation in Malaysia – competition in the job market – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33Any 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 18 May 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 [in] 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 5 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was not represented at the hearing.
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–5LA, 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 a [age]-year-old male from Malaysia. He grew up in Perak state and also lived in Penang. He is of Malay ethnicity and Islamic 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 hearing, the applicant gave evidence that his parents and siblings still reside in Malaysia. His parents are divorced, with his father living in Penang and his mother living in Kuala Lumpur with the applicant’s sisters. He remains in contact with his family, primarily through his mother whom he contacts a couple of times each month. The applicant also provides occasional financial support to his mother and siblings.
The applicant gave evidence that he finished high school in Form 5 and has not undertaken any study since then. After school, the applicant has had several jobs in the trade and building industries. For about two years from 2005, the applicant worked as a [occupation 1]. Following this, he was employed as an [occupation 2]in Penang. From about 2008 until he arrived in Australia, the applicant was self-employed working as a [occupation 2]. The applicant is currently working for [a]company that specialises in [a specific area].
The applicant’s claims for protection
In his protection visa application form lodged with the Department on 5 March 2018, the applicant claimed that he had met a man named Mr [A] who had introduced him to an investment scheme that promised him fast profits. The applicant subsequently found other people to invest in the scheme. Mr [A] absconded with the money and the other investors blamed the applicant for their money being stolen. The investors threatened the applicant and physically harmed him. The applicant fears that if he returns to Malaysia he will be killed by the investors.
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 2 August 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 criterion and determined that the Malaysian authorities are reasonably effective in combating crime and that the applicant could obtain protection such that there would not be a real risk that he would suffer significant harm.
At the hearing, the applicant clarified some of the information included in his protection visa application. The applicant noted that an agent had assisted him in preparing the application. Whilst the claims included in the application were broadly in accordance with the applicant’s instructions, the applicant noted that he had not been physically harmed by the investors in the past. Incorrect information relating to the applicant’s personal details was also included in the application form, particularly relating to the applicant’s work history.
In addition to the claim relating to the investment scheme, the applicant also expressed a broad concern regarding the economy in Malaysia.
The applicant’s claims are discussed in more detail below.
Claim relating to the investment scheme
At hearing, the applicant provided considerable information about the investment scheme that he became involved in. The applicant explained it was a [particular] scheme, which operated in a similar manner to a pyramid scheme whereby he was required to sign up other investors to the scheme. The applicant first found out about the scheme when he was introduced to a person known as ‘Mr [A]’. They were introduced through a friend. Mr [A] explained that the scheme would allow the applicant and the investors that he brought on board to make money quickly.
The applicant could not recall the exact year in which he first invested, although it was likely around 2015 or 2016. The applicant invested MYR10,000 of his own money over a 1‑to‑2‑year period. Additionally, the applicant signed up ten other people who each invested between MYR1,000 and MYR5,000. Investors either had the option of engaging additional investors or selling [products]. The applicant opted only to seek out other new investors. The applicant was advised by Mr [A] that his MYR10,000 investment would result in a 10-fold return of about MYR100,000. The applicant did not receive any return on his investment even though he was able to bring other investors on board.
The applicant did not receive any paper records confirming his investment but was promised he would receive a return. He explained that at the time, similar [schemes] were very popular, and he did not appreciate that the scheme he invested in was likely an illegal operation, but he does so now.
The ten other investors that the applicant signed up were people from the applicant’s home village. When signing them up, the applicant would discuss their income earning potential. They would also be invited to promotional events held at various hotels. The applicant described the investors as being of a similar economic and financial background to him – often self-employed. They would pay their money to the applicant who would then transfer it to an agent who worked for the [scheme].
By about 2017, the applicant’s investors were concerned about their money as they had not received a return. They were all angry and the applicant was threatened by several of the investors. These threats were against both the applicant personally and his family.
When asked why the investors threatened the applicant given he was not personally responsible, the applicant responded that he told the investors this but they did not believe him.
Since arriving in Australia, the applicant has been paying back the people that he encouraged to invest in the scheme. He has paid back the money in full to the people who made threats against him. The applicant is still working to pay back money to the other investors, with about MYR20,000 still outstanding. The applicant said that he has lost contact with some of the ten but hopes to be able to repay them one day.
The applicant did claim that as the money has not been paid back in full to some of the investors, he still fears that they may harm him. He claimed that if he were to see those investors in Malaysia, they might beat him up before he had time to explain that he was intending to repay the money. The applicant also expressed a concern that the police might not assist as it could appear that he had taken the money. The applicant did confirm, however, that none of the investors that are still owed money have ever threatened the applicant or his family.
The applicant confirmed that he does not owe money to Mr [A] or to any other person.
The Tribunal accepts that the applicant encouraged ten people to invest in the [scheme] in about 2016 and that the applicant and his family were threatened at various times when those investors lost their money. Furthermore, the Tribunal accepts that the applicant’s fear of harassment and harm from those investors was the primary motivation for the applicant leaving Malaysia and seeking protection in Australia. However, the people who threatened harm against the applicant have now been repaid in full. Additionally, the applicant has never been threatened by the other investors and there is nothing to indicate that after so many years have elapsed, they would now seek to threaten or harm the applicant or his family.
Given the above, the Tribunal finds that the applicant does not face a real chance of serious harm from any investor or person involved in the [scheme] if he returns to Malaysia, now or in the reasonably foreseeable future.
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.[1] 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.
[1] 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].
Notwithstanding the decision above, the applicant’s efforts to repay the money to the investors is admirable given he did not profit from their loss, and he too lost money in the scheme.
Claim relating to economic harm
In addition to the above, the applicant also expressed to the Tribunal that he had some concerns about his financial situation in Malaysia. The Tribunal questioned the applicant as to whether he believed he would be able to find employment if he returned to Malaysia. The applicant responded that he would not as he does not have qualifications, experience or skills. Given the applicant’s work history, the Tribunal asked the applicant to elaborate on this claim. The applicant explained that he would struggle to find employment due to the limited job opportunities and even though he worked for himself in the past, he claimed that his business went up and down, but overall operated at a loss. The applicant also said that if he returned to Malaysia and work, his wage would be lower than it is in Australia.
The applicant indicated that if he returned to Malaysia, he could live in [City 1]at his grandparents house. The applicant also has the option of living in Kuala Lumpur with his mother, however, he indicated his preference to live in[City 1].
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 the competitive job market may limit his income-earning capacity upon his return to Malaysia, and that his income may be less than what it is currently. However, the applicant is still relatively young and has a solid work history both in Malaysia and in Australia. 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 applicant’s own evidence and work history, the Tribunal does not accept that he 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 finds that the feared economic harm on account of the general economic situation in Malaysia, including competition in the job market, 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.
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
MemberATTACHMENT - 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.
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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