1828635 (Refugee)

1828635 (Refugee) [2020] AATA 5366 (21 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1828635
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Windsor
DATE:21 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 October 2020 at 3:39pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – harassed by loan sharks – significant differences between written application and evidence at hearing – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 7 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 4 July 2018.
In his Protection visa application the applicant indicated he was born on [date] in Sandakan, Sabah state Malaysia, is ethnic Malay and a Muslim. He stated he has never married. He indicated that he departed Malaysia legally [in] April 2018 and arrived in Australia on the same day, entering on a Visitor visa.[1]
In his application, the applicant claimed he came to Australia because he was being disturbed by a loan shark because he took over a loan shark debt incurred by his brother.[2]
After considering relevant country information, the delegate found there are effective protection measures available to the applicant from the Malaysian authorities, consisting of an appropriate criminal law, a reasonably effective police force and impartial judicial system. In relation to the complementary protection criterion, the delegate found the applicant could obtain, from an authority of the country, protection such that there would not be a real risk he will suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 28 September 2018. He provided the Tribunal with a copy of the delegate’s decision record.[3]
The applicant appeared before the Tribunal by telephone on 20 October 2020. The 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 (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 (the Department), 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’s claims for protection were set out in his protection visa application. His claims were as follows (as written by the applicant):[4]
Select the country or countries from which this applicant is seeking protection and cannot return to: MALAYSIA
Provide reasons why this applicant left that country:
I left my country because of my brother mistake. In 1995 my brother has a business in sandakan sabah. In 2007 he got a big financial problem them he been force to take a big amount of loan from a groub that being call loan shark and at the same time my dad has kidney problem disease and minor stroke and my mon has hearts problem. In 2015 my brother failed to follow the rules given and failed to pay the debt due to the debt buried and their bisness was forced to close. The loan shark often comes to disturb my brother at home. in 2016 my brother took an accident because of the group they hit my brother but they did not realize that way so my brother was no longer able to pay their debt. in the beginning of 2017 they often messed up my parents and forced them to pay their children's debt and they also managed to find me and often disturb me at work and at home. they have made a mess in my workplace at petaling jaya and I decided to cover the debt cost. because I do not want them to mess up my family and my parents but in 2018 I also feel the burden because I have to bear the responsibility to blame my brother, my dad's medicine I dial up my father who is too expensive every week ago I decided to come here for bear everything. I know by being here I'm safer. they often disturb my parents even though I'm here. I hope you guys can be thoughtful and can give me a stay in this country until all the cases are over. thanks again i appreciated a lot.
Did this applicant experience harm in that country? Yes
They keep disturb me at my workplace
Did this applicant seek help within the country after the harm? Yes
I make a lodge police report but they do nothing. Like all know that malaysia full of Corruption.
Did this applicant move, or try to move, to another part of that country to seek
safety? Yes
I tried to move to perak and KL but they still can find me
Explain what the applicant thinks will happen to them if they return to that country:
I pretty sure they will harm and threaten me like they did to my
Brother
Does this applicant think they will be harmed or mistreated if they return to that country? Yes
Anyhmthing they can do even my live what i can most is my
parent and my family
Does this applicant think the authorities of that country can and will protect this
applicant if they go back? No
They allready give money too police whi handle this case.
Does this applicant think they would be able to relocate within that country to an
area where they would not be harmed? Yes
I tried to move to nothern area bit they still find me threats me with many ways.
Findings and reasons
Identity
On the basis of the copy of his passport submitted to the Department,[5] the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
Background
At the start of the hearing the applicant indicated that everything in his protection visa application was true and correct as far as he knows and believes. When asked if there were any mistakes he wished to point out to the Tribunal he replied, ‘so far, none’. He indicated he had no assistance in preparing his application.
The applicant confirmed that he has never married. Contrary to what was written in his application, where he indicated he is in regular contact with his father, he indicated his father passed away in April 2008. He said his mother, who is in her 80s, lives in the family home in Sandakan, Sabah, with his brother. He indicated he also has a married sister who is living with her family in [town], Sabah. The applicant indicated that his brother runs his own [Business 1] in Sandakan.
The applicant indicated he worked as a [Occupation 1] in Malaysia. Contrary to the advice in his protection visa application, which stated that he worked as a [Occupation 1] at [Business 2] in Petaling Jaya, Selangor state, from February 2000 until 25 June 2018 (he came to Australia [in] April 2018), he indicated that he had worked at a number of [businesses] and [Business 2] was the last place he worked before he came to Australia. He indicated that he also worked at [Business 3] from 2000, then spent fourteen years working at [Business 4] from 2003 until 2017 before working at [Business 5] and finally [Business 2].
The applicant indicated he has done a variety of work in Australia including [specified].
The Tribunal asked the applicant if he had ever travelled to Australia before he came in April 2018. He indicated that he visited Australia for 9-10 days in April 2017. He said he was ‘clearing’ his annual leave and was able to get a cheap airline ticket so he visited a friend who was in Australia.
‘Sidelined’ at work
The Tribunal asked the applicant why he returned to Australia in April 2018 and why he then sought protection in Australia. He said that after he returned from his holiday in Australia he was sidelined at work and had to look for another job. He indicated that he had been working at one place for a long time and was getting good remuneration (he indicated that he was the [assistant manager] and earnt RM[amount] per month) and speculated it may have been because of his age (he would have been [age] at the time), commenting that he had become very comfortable in the job and perhaps they wanted fresh staff. He said he found it very difficult to get something similar and the salary was not enough for him to support his mother, his brother and his brother’s family. The Tribunal queried why he needed to support his brother if his brother has [Business 1]. The applicant replied that his brother has only just started [Business 1]. He added that his brother also has health issues which affect his ability to stand for long periods or exert himself physically.
The Tribunal asked the applicant if he is saying he came to Australia for economic reasons. He replied, ‘yes’. The Tribunal asked the applicant what he thought would happen to him if he had to return to Malaysia. He replied that he is still single and is now in his [age range]. He said it is up to him to support the members of his family and added that, if he wished to marry he will need money and it will be difficult for him.
The Tribunal asked the applicant if he ever experienced harm in Malaysia. The applicant replied that he owed money to a lot of people – close relatives, friends and friends of friends. He said he used his car as collateral and it was taken by them. He said this was in early 2018. The Tribunal asked the applicant why he borrowed money given he indicated he had worked at a [business] for a long time and the salary was quite good. He acknowledged that the salary was good but commented that it did not balance the lifestyle in Kuala Lumpur. He added that he also set up his own [business] but it didn’t do well and folded, and that was when the gap between what he earnt and what he spent started.
The Tribunal asked the applicant if he has been able to repay what he owed since he has been in Australia. He replied, ‘yes’ but added he paid off all the friends first and still owes RM[amount] to relatives. The Tribunal asked the applicant who are the relatives he owes money. The applicant commented that he borrowed from many relatives ‘near and far’ and from his closest neighbours. He commented that the money he and his brother borrowed they have been able to repay. When queried about this he said he and his brother set up the [business] in ‘uptown’ [Suburb 1] in Selangor state. He indicated they did this at the end of 2019.
The Tribunal asked the applicant if his brother had been involved in any business before then. He replied, ‘no’. The Tribunal asked if his brother had ever had a business in Sandakan in Sabah state. The applicant replied, ‘no, never’, commenting that the [business] in [Suburb 1] in Selangor state was the first business his brother had been involved in. The Tribunal commented that this (the end of 2019) is after the applicant had left Malaysia (in April 2018). He acknowledged that is correct. The Tribunal asked the applicant what his brother had been doing before then. He said his brother also was a [Occupation 1]. He commented that his brother’s workplace shut down and his brother was owed seven months’ salary. He said his brother then worked as a [Occupation 2] but had to stop that work due to ill health. He said his brother then worked [in Occupation 3] but the [equipment] he used was rented and had a lot of problems and his brother found he could not earn enough money. The applicant indicated that after that they set up the [business] in [Suburb 1].
The Tribunal asked the applicant if he or his brother ever borrowed money from a loan shark. He said they never borrowed from a loan shark.
The Tribunal queried the applicant that he had indicated at the start of the hearing that he had no assistance with his protection visa application, but what he was telling the Tribunal at the hearing was very different to what was written in the application, suggesting to the Tribunal that someone else completed his application. The applicant insisted that he filled-out the application himself but commented that due to his poor level of English language proficiency someone assisted him. The Tribunal pointed out three key areas of difference between his evidence at the hearing and his written statement of claims. Firstly, he said at the hearing that his brother never had a business in Sandakan, whereas his written statement says his brother had a business there from 1995. Second, at the hearing he said neither he nor his brother borrowed money from a loan shark, but his written statement indicated that his brother took a loan from a loan shark group in 2007, that in 2015 his brother failed to pay the debt and the business was forced to close, and in 2017 he decided to cover the cost of his brother’s debt. Third, at the hearing he indicated that his father passed away in April 2008, but his written statement indicates that in 2018 he was feeling the burden of, among other things, the cost of his father’s medicine. The Tribunal commented that the very significant differences in the two accounts make it very difficult for the Tribunal to believe that he himself wrote what was put in his application.
The applicant responded that he admits that what was written was all completely false. He indicated he did receive help from a friend and thought what he wrote down was what his friend submitted. He said what the Tribunal had read out to him from his written claims is all completely wrong but what he is saying today at the hearing is the truth. The Tribunal reminded the applicant that he had made an affirmation at the start of the hearing that everything he would tell the Tribunal would be the truth but he then told the Tribunal everything in his application was true and correct as far as he knows and believes and that he had no assistance with the application, which was not true. The Tribunal commented that this makes it difficult for the Tribunal to feel confident that everything he has told it at the hearing is true. The applicant maintained that his friend must have changed what he told him and said the Tribunal should believe what he has told the Tribunal at the hearing.

The applicant confirmed that he was never disturbed at his workplace by a loan shark, that he never made a police report regarding a loan shark and that he never tried to move to Perak.
The applicant said he fears returning to Malaysia not because of any loan shark but because he fears his future would be dim.
While the Tribunal accepts that the applicant wishes to remain in Australia because he can earn significantly more in Australia than he can in Malaysia (where the monthly minimum wage in urban areas is RM1,200),[6] and accepts that he would like to be able to earn additional money to assist his brother as well as his mother, the Tribunal finds that there is nothing to indicate or suggest that the applicant would be denied the opportunity to work or would be unable to find any work in Malaysia. While the Tribunal accepts the applicant may have less disposable income available to him if he returned to Malaysia, the Tribunal does not accept that he faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s.5J(1)(a) of the Act if he returned to Malaysia.
The Tribunal discussed with the applicant that country information indicates the Malaysian economy has performed reasonably well over the last few years (with a per capita GDP of nearly USD11,000, GST growth of around 4.5 per cent, an unemployment rate of 3.3 per cent, and a dramatic reduction in the share of households living below the poverty line – from 50 per cent in the 1960s to less than 1 per cent today). The Tribunal noted that the World Bank classifies Malaysia as an upper middle income, export oriented economy and the UNDP’s Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing Malaysia in the ’high human development’ category. [7] The Tribunal noted that the unpopular Goods and Services Tax also was repealed in 2018, reducing cost of living pressures on Malaysians,[8] inflation is only 1.2 per cent, and as noted above, the minimum wage in urban areas was increased from RM1,100 to RM1,200 from 1 January 2020.[9] The Tribunal commented that, from what he had told the Tribunal it did not seem that he would be in poverty or unable to support himself if he returned to Malaysia.
The applicant commented that the Mahathir government did repeal the GST in 2018 but substituted an SST (Sales and Services Tax). The Tribunal accepts this would have been the case, noting that there was an SST in place before the GST was introduced. The applicant also commented that the minimum salary only applied to government employment, not the private sector. The Tribunal read to the applicant from the press report regarding the minimum wage, which makes clear that it does apply to the private sector, and has been legislated for (the Human Resources Ministry was quoted as stating the new wage would also apply to the private sector as stated under Section 2 of the Employment Act 1955 (Act 265), Sabah Labour Ordinance (Chapter 67) and the Sarawak Labour Ordinance (Chapter 76)).[10] The applicant replied, ‘okay’ but commented that his friends all work is the same field and they are struggling. He added that the economy may be good but not for people like him who have not studied and therefore are not highly qualified.
Considering all the available evidence the Tribunal finds that the applicant’s brother never borrowed money from a loan shark and therefore was never harmed by a loan shark or their agents as a consequence. The Tribunal finds that the applicant never took over a loan shark debt from his brother. The Tribunal finds that the applicant personally has never borrowed money from a loan shark and therefore does not have a loan shark debt. The Tribunal finds that the applicant was never ‘disturbed’ at his workplace by a loan shark, never lodged a police report in relation to a loan shark, and never tried to relocate within Malaysia to avoid a loan shark.
While the Tribunal found the applicant’s evidence regarding debts he claims he still owes to relatives to be vague and unconvincing (when asked who these creditors are he did not provide specific details but commented that he borrowed from many relatives near and far and from his closest neighbours). Given the vagueness of this evidence the Tribunal does not accept that the applicant still owes RM [amount] to close relatives. While the Tribunal accepts that it is possible that he still owes small amounts to some close relatives, the Tribunal finds there is nothing in the applicant’s evidence to indicate or suggest that he faces a real chance of suffering serious harm or a real risk of suffering significant harm from any relatives due to owing them money.
The Tribunal finds that the evidence indicates that the applicant is an experienced [Occupation 1] who in the past was an [assistant manager], earning more than three times the Malaysian minimum wage. He was able to maintain employment in various [businesses] from 2000 until he departed Malaysia in April 2018. There is nothing to indicate or suggest that he would be unable to gain employment on return to Malaysia. While it is unlikely that the applicant could earn as much in Malaysia as he can in Australia, where wages are considerably higher, and the Tribunal accepts this is a significant incentive for him wishing to remain in Australia, the Tribunal finds there is nothing to indicate or suggest that the applicant would suffer severe economic hardship and/or be prevented from or be unable to obtain any employment on his return to Malaysia. The Tribunal finds that there is nothing to indicate or suggest that there is a real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, 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.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
Having carefully considered the applicant’s claims individually and cumulatively, and having regard to the relevant country information, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from loans sharks and/or their agents, relatives or friends, or anyone else, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, if he was to return to Malaysia, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[11]
Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds that there are not 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 the applicant will suffer significant harm, as set out in s.36(2A), from loan sharks and/or their agents, relatives, friends, or any authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching this conclusion, the Tribunal finds that any economic hardship the applicant might experience if removed to Malaysia, including feelings of emotional distress and/or humiliation due to his economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.
Member of the same family unit
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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.
…

[1] See the Departmental file.

[2] See the Departmental file.

[3] See the Tribunal file.

[4] See the Departmental file.

[5] See the Departmental file.

[6] ‘Minimum wage of RM1,200 for urban workers to take effect on Jan’, New Straits Times, 18 December 2019, DFAT Country Information Report, Malaysia, 13 December 2019, sections 2.9-2.15

[8] Malaysia’s Parliament repeals GST, set to replace it with SST in September, New Straits Times, 8 August 2018, Malaysia Core Inflation Rate 2016-2020 data, Trading Economics, ‘Minimum wage of RM1,200 for urban workers to take effect on Jan’, New Straits Times, 18 December 2019, 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] and Flick J at [342].

[2020] AATA 5366

21 October 2020

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