1826224 (Refugee)

1826224 (Refugee) [2024] AATA 3220 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826224
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Ben Lumsdaine
DATE:23 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2024 at 6:59am

CATCHWORDS
REFUGEE – protection visa – Malaysia – unlicensed money lender – unemployment rates – capacity to subsist – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 3 September 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 22 June 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant sought review of this decision on 7 September 2018. The applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments.
CLAIMS AND EVIDENCE
Background
The applicant is a [age]-year-old man from Sabah in Malaysia. According to the delegate’s decision record, the applicant arrived in Australia [in] May 2018 on a Subclass 601 Electronic Travel Authority visa, travelling on a valid Malaysian passport issued [in] 2018.
Evidence before the Department
The applicant applied for a protection visa on 22 June 2018. In his application for a protection visa, the applicant made the following claims:
·     He left his job as a [Occupation 1] in Malaysia because of discrimination in employment activities. This meant that it was very difficult to get a reasonable salary with his work skills and graduation certificate.
·     He was unable to afford his expenses, including expenses for his siblings who were still in school. He decided to come to Australia to ‘get out of this poverty’.
·     He would have difficulty finding job opportunities and re-establishing himself in Malaysia.
·     The authorities in Malaysia would not assist him with this type of problem.
·     He would be unable to relocate within Malaysia.
The applicant provided a copy of his passport with his application.
On 9 July 2018, the applicant was sent a letter from the Department of Home Affairs (‘the Department’) acknowledging they had received a valid protection visa application and informing the applicant that an appointment had been made for him to provide biometrics information on 17 July 2018. The applicant attended the biometrics appointment at the Department of Home Affairs.
On 3 September 2018, a delegate of the Minister for Home Affairs refused the applicant’s protection visa application. The delegate found there was no real chance the applicant would face serious harm in Malaysia based on the applicant’s evidence and country information indicating the economic situation in Malaysia was improving and the Malaysian government was making efforts to reduce poverty. The Tribunal also found there were no substantial grounds for believing that the applicant would face a real risk of significant harm on return to Malaysia.
The applicant was notified by email sent to the email address provided in the applicant’s protection visa application.
Evidence before the Tribunal
On 7 September 2018, the applicant applied for review of the delegate’s decision to refuse his protection visa application. The application for review included a copy of notification of the delegate’s decision to refuse his application and the reasons for the decision.
On 31 January 2024, the applicant was sent a pre-hearing information form to fill out regarding his availability for a hearing. The Tribunal received no response from the applicant.
On 20 March 2024, the applicant was sent an invitation to a hearing before the Tribunal on 11 April 2024. The applicant did not attend the hearing.
On 15 April 2024, the applicant wrote to the Tribunal explaining that the invitation to the hearing was sent to an old email address and requesting a two-month postponement of the hearing as he needed time to save money to travel to Sydney. On 23 April 2024, the Tribunal wrote to the applicant offering to conduct the hearing by video conference so the applicant did not have to travel. On 26 April 2024, the applicant wrote to the Tribunal accepting this offer.
On 29 April 2024, the Tribunal invited the applicant to a hearing on 9 May 2024 by video- conference. On 29 April 2024, the Tribunal received a response from the applicant confirming he would attend the hearing by video-conference. On 3 May 2024, the applicant attended a session with the Tribunal to test and confirm the applicant had adequate technology to conduct the hearing by video-conference.
On 9 May 2024, the applicant attended a hearing by video-conference before the Tribunal. The applicant confirmed that he was in a private room where no other person could hear him. A Malay speaking interpreter was present to assist with the hearing. Where relevant, evidence given by the applicant is included in the consideration of the applicant’s claims and evidence below.
No further information or evidence has been provided to the Tribunal in relation to the applicant’s claims.
Independent information
Unemployment in Malaysia
The unemployment rate in Malaysia has been consistently low for several years. The unemployment rate for men in Malaysia in 2017 was 3.3%.[1] Most unemployment is of youth rather than adults. In 2017, the unemployment rate was 1.8% for adult males, compared to 10.4% for male youth.[2] Further, between 2006 and 2017, the unemployment rate for people between 50 and 54 years of age in Malaysia varied between 1.3% and 3.1%.[3] There is some variation in unemployment rates between people of different ethnic backgrounds, with Indian Malaysians facing higher unemployment rates compared to Bumiputera and Chinese Malaysians.[4] There is also some variation in unemployment rates by region. Sabah, the applicant’s home state had a relatively high rate of unemployment in 2017 at 5.6% as opposed to 3.4% nationally.[5] While the Tribunal does not have detailed recent unemployment rates broken down by age or gender, in 2023, the total unemployment rate was 3.6% and 3.5% for males over 15 years’ of age,[6] which suggests little has changed since 2017. This indicates that the vast majority of men over 50 and participating in the workforce are employed.
CONSIDERATION OF CLAIMS AND EVIDENCE
[1] Institute for Labour Market Information Analysis, available at: 9. Unemployment - Institute for Labour Market Information and Analysis (ILMIA)
[2] Ibid.
[3] CEIC, Malaysia % Unemployment: 50 to 54 Years | Economic Indicators | CEIC (ceicdata.com)
[4] DFAT Country information Report, Malaysia, 29 June 2021, p11 at [2.14].
[5] Institute for Labour Market Information Analysis. availb9. Unemployment - Institute for Labour Market Information and Analysis (ILMIA)
[6] World Bank website, available at: Unemployment (%) | World Bank Gender Data Portal, accessed on 20 May 2024
Relevant law
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.
Refugee criterion
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).
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.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis – assessment, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. The Tribunal has considered the applicant’s claims and the independent information described above and makes the following findings. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).
Nationality and receiving country
The applicant claims to be a citizen of Malaysia and no other country. The applicant provided the Department with a copy of his Malaysian passport. The delegate was satisfied with the applicant’s identity and the authenticity of his passport. The Tribunal has also reviewed the applicant’s passport. At the hearing, the applicant confirmed he held Malaysian citizenship and no other citizenship. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Malaysia and considers Malaysia is the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims to be a refugee
At the hearing, the applicant gave evidence that he grew up in Sabah and had [number] siblings. He worked in numerous roles including as a [Occupation 2] and a [Occupation 3] before coming to Australia where [number] of his siblings are currently.
At the hearing, the applicant explained that he had not prepared his application for a protection visa himself and was unaware of what was in the application. He gave evidence that he did not read his application for the protection visa and did not have other parts of the application read to him before the hearing but that a friend of his had read some of the application to him. He explained to the Tribunal that the information about him being a [Occupation 1] in Malaysia was not correct and he did not know this was in his protection visa application. Based on this evidence, the Tribunal finds the applicant was not a [Occupation 1] in Malaysia and does not fear discrimination in relation to work as a [Occupation 1] in Malaysia as stated in his protection visa application.
At the hearing, the Tribunal asked the applicant what should have been written in the section about the applicant’s fear of harm in Malaysia. The applicant stated he came to Australia because he borrowed a lot of money and had a lot of debts from an unlicensed money lender. When the Tribunal asked the applicant what he feared may happen to him if he returned to Malaysia, he explained that he had a debt in Malaysia but had repaid it. The applicant explained that he was in the process of building a three-bedroom house in his hometown in Sabah. He had not quite completed paying for the construction of the house. He feared that if he returned to Malaysia, he would have difficulty finding work as he was over 50 years old and would not have any money.
The Tribunal put to the applicant that country information indicated that unemployment rates in Malaysia for men over 50 years were very low and indicated that it was likely he would find work if he returned there. In response, the applicant stated most men over 50 years old were already in employment and not searching for work. The Tribunal acknowledged this was likely the case but noted the applicant had friends who had helped him find work in Australia and also had a considerable familial network in Malaysia that could help him find work.
The Tribunal put to the applicant that even if he were unable to find work, he would likely be able to find support from one or more of his [number] siblings. Further, he would be able to sell his house if he needed the money such that his economic situation would threaten his capacity to subsist. In response, the applicant stated that there is no threat for him at all in Malaysia. He stated that he had a big family and they had their own problems. He stated that he did not want to sell his house because he has worked so hard for it. The Tribunal explained that he would not necessarily have to sell his house, but while he had an asset such as his house, it would be difficult for the Tribunal to find that he was facing economic hardship that threatened his capacity to subsist.
The Tribunal also put to the applicant that even if he were unable to find work in Malaysia, there was no evidence to suggest that it would be for one or more of the reasons set out in s5J(1)(a). The applicant agreed that it was not for one of these reasons.
Having considered the evidence above, in particular the applicant’s evidence that his fear is not finding work on return to Malaysia and having to sell his house to financially support himself, the Tribunal finds the applicant would not face a real chance of serious harm in Malaysia and does not fear harm for a refugee ground; that is, a reason set out in s 5J(1)(a) of the Act.
Findings on refugee criterion
For the reasons above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to Malaysia for any other reason in s 5J(1)(a), now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in Malaysia. Accordingly, the applicant does not satisfy s 5H(1).
Consideration of applicant’s claims for complementary protection
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if 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 or she will suffer significant harm (the complementary protection criterion).
As set out above, the Tribunal has found the applicant does not meet the refugee criterion. As such the Tribunal has considered whether the applicant is entitled to complementary protection in Australia. As set out above, the applicant fears he will have difficulty finding work on return to Malaysia and does not wish to sell the house which he has nearly completed building because he has worked hard for it. At the hearing, the Tribunal put to the applicant that the harm he feared – namely having difficulty finding work on his return to Malaysia – fell short of the standard of significant harm. The applicant agreed that it did not meet this standard. The applicant has provided no information or evidence to indicate that he would face a real risk of significant harm for any other reason.
Findings on complementary protection
The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of 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 Lumsdaine
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 3220

23 May 2024

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