1829009 (Refugee)

1829009 (Refugee) [2024] AATA 3962 (29 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1829009

COUNTRY OF REFERENCE: Malaysia
MEMBER:Maralean McCalman
DATE:29 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 August 2024 at 9:25am
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – Kadazan ethnicity – Sabahan – religion – Christian – employment – economic conditions – affirmative action policies – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate for the Minister for Home Affairs on 18 September 2018, to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Malaysia applied for the visa on 24 March 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.
CLAIMS AND EVIDENCE
Background
In his protection visa application, the applicant said he was born in Kota Kinabalu in Sabah, Malaysia on [date]. He is a married man, a Christian and of Kadazan ethnicity. He does not list any family members in Sabah or in Australia. In regard to his education, he attended junior school in Sabah and completed middle school in [Country 1] and high school back in Sabah. He then studied in Australia at the [University 1] where he completed a one-year [Foundation course] followed by a [Qualification 1] at the [University 2] in Sarawak which he completed in [specified year]. In 2010, he completed a [Qualification 2] in Sabah and then in 2015, he completed a [Qualification 3] by coursework in Sabah. In terms of employment, his application originally said that he had been employed as [an occupation 1] in Malaysia immediately before leaving for Australia. However, the applicant corrected this through the Administrative Appeals Tribunal (the Tribunal) portal to change the employment from ‘[occupation 1]’ to ‘[occupation 2]’.
He arrived in Australia [in] February 2018, travelling on his Malaysian passport as the holder of a visitor visa.
Evidence before the Department
Claims for protection
The applicant’s protection visa application outlined the protection claims as follows:
·He was discriminated against and had limited employment opportunities.
·It was difficult to maintain an acceptable standard of living due to low income and he no longer wants to live in poverty.
·He wants to live in a safer place with better job opportunities in order to help himself financially.
·If he returns to Malaysia, he will have difficulty finding employment.
The applicant provided copies of his Malaysian identity documents with his application.
The delegate’s decision
The applicant was not offered an interview with the Department. On 18 September 2018, the delegate made their decision. Based on the information before them, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 3 October 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided the Tribunal with a copy of the delegate’s decision.
The applicant provided the following documents to the Tribunal prior to the hearing. The content of these documents relates to discrimination and disadvantage experienced by ethnic people from the old North Borneo states of Malaysia. They are as follows:
Submissions provided 15 May 2024
1.Notification of incorrect answer on PPV application.
a.Correct ethnicity provided – Kadazan
b.Correct place of birth provided
c.Correct education details provided
d.Correct date of marriage provided – [in] October 2012
e.Correct reasons for claiming protection provided
f.Correct response to having National Identity Card provided
2.Racial Discrimination Survey results from Indexmundi.com – Country Facts
3.Launch of the Malaysian Racism Report 2022 dated 21 March 2023 from website komas.org
4.Article dated 26 July 2020 – published by ASEAN (Association of Southeast Asian Nations) Australia – ‘Why have Malaysian minorities internalised systemic racism for 63 years?’
5.Article dated 20 September 2023 – published by SAYS – ‘Survey Reveals That 64% of Malaysians Have Experienced Discrimination in The Past 12 Months’
6.Photo of a booklet saying ‘UNEQUAL PARTNERS Race, Religion, Domination and Inequality in East Malaysia’
7.Photo of a brochure saying ‘We are Hiring 2024 Internship Intake’. The applicant noted that only shortlisted candidates will be contacted for an interview.
Submissions provided 6 June 2024
1.Screenshot of 92 TikTok videos by Zainnal Ajamain MA63 (Malaysia Agreement 1963) activist. The applicant provided the following descriptions for each video:
1. We (Sabah)never sign, 2. Federation of Malaya, 3. Federation of Malaya Agreement 1957, 4. Never, 5. If we look, 6. Territory No. 1, 7. Federation of Malaya, 8. Territory No.2, 9. Sarawak, 10. Territory No.3, 11. Sabah (formerly known as North Borneo), 12. That Territory No.1, 13. is the same as ?, 14. States of Malaya, 15. Borneo States, 16. Not States of Borneo, 17. It says ?, 18. Borneo States, 19. Borneo States meaning consisting of 2, 20. States of Malaya,1, 21. Not the ?, 22. 13 States, 23. Hence ? 24.Three (3), 25.Territories, 26. The Territories of the States, 27. In Clause (2), 28. Which means Territory, 29. 1 Malaya Territory, 30.1 Sarawak Territory, 31. 1 Sabah Territory, 32. You have your own different sovereignty, 33.You have your own different jurisdiction, 34. so, the territories of each of the State, 35. mentioned in Clause(2), 36. are the territories comprised therein, 37. immediately before Malaysia Day, 38. this we quote from, 39. the Federal Constitution 1970, 40. Before the (illegal) changes made in 1976, 41.This is the picture of Malaysia, 42. Now, 43. when they (Malaya), 44. Changed, 45. Article 1(2), 46. Inside, 47. the Federal Constitution, 48. This happened, 49. Before, there were 3 Territories, right? 50. States of Malaya, 51. Borneo States, 52. There were 3, 53. With the amendment of Article 1(2), 54. Of the Federal Constitution in 1976, 55 .All became 1 Territory, 56. All became 1 Territory, Malaya Territory, 57. So, 58. The whole of Malaysia now, 59. Becomes, 60. Malaya Territory, 61. Malaya Territory, 62. Hence, when it became, 63. Malaya Territory, 64. That means. 65.Your (Sabah) continental shelf, 66. All (now)included under Malaya, 67.That’s how they (Malaya) seized/stole it.. , 68. so the States of the Federation, 69. Shall be Johar, and the rest, 70. including Sabah and Sarawak, 71. So, 72. We (Sabah) was demoted, 73 .From being a Country, 74. To, 75. (merely) a State under Malaya, 76.Try to think , 77. think sensibly, 78. How did they (Malaya) insert, 79.us (Sabah) into Malaya Territory, 80. We (Sabah), 81.We (Sabah) never sign, 82. Federation of Malaya, 83. Federation of Malaya Agreement 1957, 84. We (Sabah) has never signed, 85. Can’t do that, right, 86. 1976, 87.Why were they (Malaya) able to penetrate?, 88. Because Tun Mustapha (former Sabah Chief Minister) was overthrown, 89. Haa, are you happy?, 90.Tun Mustapha was overthrown, 91. For what reason?, 92. We ( Sabah) can be transformed into Malaya.
2.Article in New Naratif – published on 15 September 2020 – ‘What Is the MA63? and Why it Is Important to Sabah and Sarawak?’
3.News article – published 17 March 2024 – ‘What Sarawak’s Orang Ulu reminded the Queen’
4.Extract from Wikipedia – edition 30 May 2024 – racism in Malaysia.
No further information was provided in his completed pre-hearing form which the applicant submitted to the Tribunal on 4 February 2024.
The hearing
The applicant appeared before the Tribunal on 13 June 2024 to give evidence and present arguments. The Tribunal is satisfied that the applicant had the opportunity to participate in the hearing in a meaningful way. Where relevant the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
The oral evidence provided to the Tribunal in the hearing was consistent with the information provided in the pre-hearing form provided on 4 February 2024 however, in some areas, it was factually inconsistent with the information provided in the protection visa application.
The applicant said that his protection visa application was completed by a Sabahan man he met while working on farms after he arrived in Australia. He said that the man seemed knowledgeable about the process, and he was not himself confident in how to complete his application. He said that he regrettably trusted the man to complete and lodge the application on his behalf. However, the applicant discovered after the Department had made its decision, that the information provided in his application was not accurate. He told the Tribunal that he had trouble getting hold of the original application because the man who lodged it for him, held onto the portal password. Once the applicant had access to the portal, which was around the time the Department made its decision, he corrected the information. The updates mostly consisted of incorrect factual points such as his occupation in Malaysia, and various dates related to his marriage, education and travel history.
The Tribunal accepted the updated correct information and the explanation provided by the applicant in relation to his claims for protection in Australia. The corrected information did not impact the applicant’s protection claims.
In reference to the submissions made by the applicant on 6 June 2024, the Tribunal informed the applicant that it was unable to view the TikTok videos he had provided before the hearing. The applicant agreed that he would speak to this evidence where relevant.
The 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.
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant told the Tribunal that he does not have children and is no longer married and that he comes from an academic family. Both his parents were tertiary qualified as is his sister and her family.
He told the Tribunal that his family all live in Sabah. Until retirement, his father worked in the state [Agency 1] and his mother was [an occupation 1] before their marriage. His parents’ home is a property his father inherited, and his father owns a second property where the applicant’s recently widowed sister-in-law lives. His mother also owns a plot of land that she leases to a factory.
The applicant told the Tribunal that the acquisition of property in Malaysia is generally through inheritance. The inference the Tribunal draws from this is that the applicant may very well inherit property himself in time.
The applicant’s sister, who is a married woman with children, also lives in Sabah and works at [Agency 2], Sabah. She holds a job as an [occupation 3].
The applicant said that he came to Australia because of the hardship associated with employment and the lack of equal opportunity in accessing professional level jobs in Malaysia particularly in Sabah. He said employment discrimination is rife in Malaysia coupled with the rising cost of living. He said he was tired of living in poverty and did not want to continue to live under this persistent strain.
He claims that all natives of North Borneo (now Sabah and Sarawak region), like himself, are marginalised in public and private sector jobs in favour of non-indigenous Malays and Muslims. As evidence of this discrimination the applicant told the Tribunal that his sister, though well qualified, has been overlooked for the [senior occupation 3 role] at the [agency] on several occasions. He said that she has recently been put forward as a candidate after missing out on appointment on many occasions.
In terms of the applicant’s sister’s education and that of her family and their employment, the Tribunal considers that it is relevant to the applicant’s claims because of the opportunity it demonstrates. It is as follows. His sister was awarded scholarships from the Sabahan government and completed an undergraduate degree at [University 4] in [Country 2] and then a [further] degree in [Country 2]. She married a Malaysian man after he completed his tertiary education in Adelaide, South Australia, and he now works in a government job in Sabah. They have [number] children, all tertiary qualified. [One child] has recently accepted a position as [an occupation 4] in Kuala Lumpur, [another child] has a job with [a named employer] in Sabah and [another] has a cadetship, also in Sabah.
Referencing his niece as an example, the Tribunal asked the applicant why he could not get a professional job in Kuala Lumpur. His response was that the discrimination would be worse for him in mainland Malaysia because of his Christianity. (The Tribunal did not make enquiry as to whether the applicant’s niece was a Christian or otherwise.) The applicant claims that Christian Malaysians generally are more discriminated against in the mainland area of Malaysia compared to in Sabah.
The Tribunal notes that according to the Department of Foreign Affairs and Trade (DFAT), Christians only make up approximately 10 per cent of the Malaysian population and most live in Sabah or Sarawak.[1] The research shows that as the applicant claims, all non-Muslim people face discrimination in employment in Malaysia however Christians appear to experience less severe discrimination compared to other religious minorities.[2] The Tribunal accepts that due to the applicant’s ethnicity and being a Christian, his employment opportunities were impacted when he lived in Sabah and is prepared to accept that he would be disadvantaged because of his Christian beliefs if he sought employment outside Sabah or Sarawak.
[1]Department of Foreign Affairs and Trade Country Information Report – Malaysia (DFAT Report), 24 June 2024, [3.75].
[2] Religious Freedom in Public Sector Workplaces in Malaysia: A Comparative Study of Different Jurisdictions, Research Article: 2022 Vol 21 Issue 2S at <https. accessed on 26 June 2024.
The applicant completed his junior schooling in [Country 1] when his father had [a job] there after getting a state loan from the Sabahan government to finance it. After high school he came to Australia on a scholarship and partially completed studies at [University 1] which he had to forgo for financial reasons and return home. On his return to Sabah, he completed a [Qualification 2] in Sarawak and then in 2015, he completed a [Qualification 3] by coursework from [University 3] in Sabah.
In terms of work in Malaysia, the applicant said that he had difficulty getting jobs that reflected his education level except for one position he held for approximately two years following his university work placement when he was employed as [an occupation 5].
He claims that he got the position because he was the only Sabahan [occupation 5] available, and the company was under a contractual partnership obligation to appoint a Sabahan to the job. He said that he was a tokenistic appointment, and he was subsequently replaced by a non-indigenous [occupation 5] as soon as the obligation was fulfilled. His view is that he was used as a pawn rather than employed on merit and he maintained that this was a typical experience for ethnic people in Malaysia and particularly in the old North Borneo states (Sabah and Sarawak). The jobs he held from then on were short-term comparatively low-paid administrative roles which he claims is indicative of the discriminative struggle that qualified educated indigenous citizens face with employment in Malaysia. To emphasise the wage discrepancy across roles, he gave examples of the monthly wage he was paid in his main jobs – [occupation 2] RM 1500; and [occupation 5] RM 4000.
The applicant claims that he lodged multiple applications for professional positions after his single post university position where he claims he was a tokenistic appointment and after that, he was continuously overlooked in job applications in favour of other non-indigenous applicants. Because of this, he had to accept short-term, unsecure employment in general administration roles at much reduced pay rates.

The Tribunal notes that the applicant currently works part-time as [specified role] with [Employer 1] in Australia and has held this job for the last 12 months. Prior to this role he worked in a [work site] as [a occupation 6] for [Employer 2] for nearly four years. When asked why he is not pursuing a professional role in Australia now, he said that the part-time job he has with [Employer 1] is satisfactory for his needs.
Country information
In the hearing, the Tribunal discussed an overview of country information with the applicant about the Malaysian government’s policy in regard to discrimination and socioeconomic aspects affecting the indigenous population of the Sabah and Sarawak areas of Malaysia. Since the hearing, a new DFAT Country Information Report – Malaysia,[3] has been published. The Tribunal has considered the relevant sections of the new DFAT Report and while it contains some updated information about government affirmative action policies to protect disadvantaged sectors of the population relevant to Sabah and Sarawak, the overall discussion is very similar to the previous DFAT Report and DFAT’s assessment of the socioeconomic situation and discrimination only differs slightly from the previous DFAT Report.
[3] DFAT Report, 24 June 2024.
For the reasons discussed below, the content of the new DFAT Report has not caused the Tribunal to change its assessment of the applicant’s claims. The Tribunal did not consider the content of the new DFAT Report to be sufficiently different from the previous DFAT Report such that it was necessary to have another hearing with the applicant to discuss the information contained in the new DFAT Report and give him the opportunity to comment.
The Tribunal notes that the government regulations and policies forbid discrimination against citizens based on religion or race, however, accords a ‘special position’ for ‘the Malays and natives of any of the states of Sabah and Sarawak’, and has included numerous affirmative action-style preferential programs to boost the economic position of Bumiputera (the indigenous population). Such programs promote increased opportunities for Bumiputera to access higher education, careers within the civil service, commercial opportunities and housing. Some industries (including tertiary education and distributive trade) maintain race-based requirements that mandate a certain level of Bumiputera ownership, and the government and many government-linked companies also maintain procurement policies that favour Bumiputera-owned supplies. National budgets continue to allocate large amounts of funding intended to benefit Bumiputera.[4] However, despite their constitutionally privileged position, Bumiputera households are reportedly over-represented in the bottom 50 per cent of Malaysian households by income. In-country sources reported a large divide between elite Malays and poorer, predominantly rural Malays.[5] DFAT assesses that ethnic Malays do not face negative official discrimination on the basis of their ethnicity.[6]
[4] Ibid [3.5].
[5] Ibid [3.6].
[6] Ibid [3.7].
The Tribunal also notes that according to the US State Department, Christians account for approximately 10 per cent of the Malaysian population. Most live in Sabah and Sarawak. Christian politicians are present in most political parties, although they tend not to represent Christian interests specifically.[7]
[7] Ibid [3.75].
As discussed with the applicant in the hearing, the DFAT Country Information Report pertaining to Malaysia of 29 June 2021, provides that:
·Malaysia’s Constitution forbids discrimination against citizens based on religion or race, however, accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’, thus permitting affirmative action policies [para 3.1]
·poverty rates are higher in rural areas of Malaysia, including Sabah and Sarawak, and persistent inequalities remain for indigenous peoples generally in Malaysia [para 2.11]
·several political parties in Malaysia have placed greater emphasis on Islam in order to attract the majority (Malay-Muslim) vote in recent years, particularly around federal election campaigns [para 3.38].
When discussed with the applicant in the hearing, the applicant acknowledged the government’s current affirmative action on equality in Malaysia outlined above. While the applicant (and his family) has financially benefited from such programs in the past, he said that he deplores the necessity of such programs which impacts his sense of worth as a Malaysian citizen. He also argues that the government affirmative action policy is not always put into practice nor monitored to protect minority groups. He claims that discrimination is deeply rooted and pervasive especially in regard to the Sabah and Sarawak region which means that the ethnic minorities are destined to a life of relative poverty and unfulfilling jobs. He claims that the ethnic minorities are comparatively, treated as low-class citizens.
The Tribunal notes the DFAT Report supports the applicant’s argument, in that ethnic households are comparatively low-income households, indicating that this group has less access to higher paid jobs. The Tribunal also notes the Malaysian government’s affirmative action policies and budget priorities aimed to promote increased opportunities for indigenous people in Sabah and Sarawak which in and of itself, supports the applicant’s arguments that discrimination exists.
Findings
Having considered all the applicant’s claims and evidence, the Tribunal finds as follows.
The Tribunal accepts that discrimination as is claimed by the applicant has been an element denying ethnic citizens the same opportunities as non-indigenous Malaysian citizens and that it is reasonable to assume that the applicant, being an ethnic Sabahan, has experienced such discrimination in employment on the basis of his ethnicity and race.
The Tribunal accepts that the discrimination the applicant experienced affected his earning capacity and he faced relative poverty compared to when he had the post graduate [occupation 5] position, and that his security in jobs and his general sense of self-worth was negatively impacted.
The Tribunal accepts that when he lived in Malaysia, the applicant experienced discrimination in employment such that he was overlooked for jobs for which he was qualified, and he thus had to accept lower paid jobs than he could otherwise have had.
The Tribunal accepts that the applicant experienced non-meritorious employment and that he had to take jobs that did not utilise his academic qualifications.
However, the Tribunal does not accept that the discrimination affected his ability to gain employment or housing or that he was denied the opportunity to support himself.
Aside from his limited earning capacity in Malaysia, the Tribunal notes that the applicant has had access to housing, education and services throughout his life in Malaysia. There was no suggestion by the applicant that access to these things would not continue in the future. In fact, the applicant told the Tribunal that his parents inherited the property they live in from his grandparents and indicated that this is the way property is generally acquired in Malaysia.
Does the applicant meet the refugee criterion?
The question now for the Tribunal is to assess whether there is a real chance that the applicant would face serious harm if he returned to Malaysia now or in the reasonably foreseeable future. The Tribunal notes the affirmative action by the Malaysian government to address the disadvantage faced by ethnic groups particularly in Sabah where the applicant would likely return to live with his parents. The Tribunal also notes the applicant’s evidence about the employment opportunities his sister and her family have recently had relative to his own from before he came to Australia in 2018. The Tribunal notes the country information that says that some level of discrimination exists that impacts ethnic Malaysians and considers this in the context of the real chance test that the Tribunal must consider.
The concept of ‘real chance’ as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained in the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[8]
[8] (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406–7, Dawson J at 396–8, McHugh J at 428–9.
Based on DFAT information discussed above, the Tribunal accepts that in a policy sense, ethnic Malays do not face ‘official discrimination’, however, that persistent inequalities remain for indigenous peoples generally in Malaysia. The Tribunal discussed at length with the applicant, the type of harm that he would face if he returned to Malaysia, and he tried to get employment. The Tribunal accepts that because of discrimination based on his ethnicity, the applicant would be impacted and as a result he will be denied the full range of jobs and earning capacity that he might otherwise have.
On the basis that the applicant is an indigenous Malaysian man, the Tribunal finds that if the applicant returned to Malaysia, there is more than a remote chance that he would be negatively impacted by the persistent inequality resulting in discrimination in employment. The Tribunal accepts that there is a real chance that the applicant would experience discrimination in employment, and that this would constitute a form of harm to him, if he returned to Malaysia now or in the reasonably foreseeable future.
The question now for the Tribunal to assess is whether the level of harm, that is the impact of the discrimination, the applicant would face in the future if he returned to Malaysia, rises to the level of serious harm as outlined in s 5J(4)(b). While serious harm is not exhaustively defined in s 5J(4)(b), for harm to amount to serious harm it must, for example, pose a threat to a person’s life or liberty; significant physical harassment of the person; significant physical ill-treatment of the person; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In the hearing, the applicant conceded that his negative experience fell short of the legal test because he has never experienced a threat to his life or liberty, nor any physical harassment, nor has his capacity to subsist ever been threatened and he has not been denied access to basic services or denied his capacity to earn a livelihood.
The Tribunal agrees and notes that the applicant is relatively young, that he has had employment before he came to Australia, and that he is well qualified and well experienced in a variety of areas which has been enhanced through his employment in Australia since 2018. The Tribunal also notes the Malaysian government’s commitment to address discrimination, and also that the applicant’s family members are currently advancing their careers in Sabah and in wider Malaysia.
Thus, the Tribunal finds that the level of harm the applicant will experience does not rise to the level of constituting serious harm as outlined in s 5J(5) of the Act.
The applicant did not make any specific claims because of his Christianity alone or that he fears persecution on the basis of his religious beliefs. The Tribunal thus finds that the applicant would not suffer harm related to his Christian beliefs if he returned to Malaysia now or in the reasonably foreseeable future.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Malaysia now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
As the Tribunal has concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
The complementary protection criterion requires that 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 the applicant will suffer significant harm: s 36(2)(aa).
The question for the Tribunal is whether the circumstances of the applicant experiencing further employment discrimination amounts to ‘significant harm’ to the applicant. ‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subject to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment,’ ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
Based on the Tribunal’s findings above, the Tribunal does not accept that the harm the applicant would face if he returned to Malaysia, falls within the scope of the definition.
In the hearing, the Tribunal explained to the applicant the criteria to qualify for protection as set out in the Act and in the Regulations and put to him that it did not appear that the reasons he had advanced for protection would satisfy the legal criteria. The applicant acknowledged that his claims fell short of the legal test and indicated that he understood the issue. He did not make any other claims for protection.
Having regard to all its findings of fact above and the totality of the applicant’s circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, the applicant will face significant harm if he was returned to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under either s 36(2)(a) or 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.
Maralean McCalman
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 3962

29 August 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction