1831125 (Refugee)

[2024] AATA 1131

1831125 (Refugee) [2024] AATA 1131 (8 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831125

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Fraser Robertson

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 January 2024 at 12:32 pm (WA time)

DATE OF WRITTEN RECORD:                31 January 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 January 2024 at 8:02am

CATCHWORDS

REFUGEE – Protection Visa – Malaysia –economic situation – multiple applicants had made identical protection visa applications – race – Chinese ethnicity –applicant’s fears of persecution are not well-founded – credibility concerns– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 424AA

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2018 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2.    On 8 January 2024, the Tribunal made an oral decision and gave an oral statement of the decision and reasons.

STATEMENT OF DECISION AND REASONS

3.    Attached to this decision record is a written reduction of the decision and reasons delivered orally on that date.

DECISION

4.    The Tribunal affirms the decision not to grant the applicant a protection visa.

Fraser Robertson

Member

ATTACHMENT - STATEMENT OF DECISION AND REASONS

GIVEN ORALLY ON 8 JANUARY 2024

BACKGROUND

1. The applicant applied for a review of a decision made by a delegate of the Minister of Home Affairs on 8 October 2018 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).

2. The criteria for a protection visa are set out in section 36 of the Act and Schedule 2 of the Migration Regulations. The issue in this application is whether the applicant meets the refugee criterion for protection contained in section 36(2)(a) or the complementary protection criterion contained in section 36(2)(aa) of the Act.

3. I have considered the refugee law guidelines and the complementary protection guidelines prepared by the Department of Home Affairs and the country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) to the extent that it is available and relevant to the decision under consideration. I note, in particular, the existence and content of the DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 29 June 2021.

PROTECTION VISA APPLICATION

1. The applicant last arrived in Australia on [date] December 2017 and applied for a protection visa on 15 March 2018.

2. The applicant claimed that, in summary, she left Malaysia because of political and economic issues, and if she returned, she would have no job and would be unable to support herself and her family. She claims to have applied for many jobs in Malaysia but failed because of the economy and political issues.

3. The delegate refused to grant the protection visa application on 8 October 2018.

APPLICATION FOR REVIEW

1. The applicant applied for a review of the delegate’s decision on 23 October 2018. The applicant was invited to a hearing to be held on 8 January 2024. The response to that invitation indicated that, amongst other things, the applicant did not request the Tribunal take evidence from any witnesses.

CLAIMS AND EVIDENCE

1. The applicant attended a hearing before the Tribunal today, 8 January 2024, to give evidence and present arguments.

2. The applicant’s evidence at the hearing can be summarised as follows.

3. The applicant confirmed that the contents of her protection visa application were true and correct. She claimed she asked a friend to help translate the questions, but she completed the application. The applicant claimed she cannot return to Malaysia because of the economic situation. She claims her salary is insufficient to support herself and her mother.

4. The applicant’s mother is [age] or [age] years old; however, she has deteriorated mentally and no longer recognises her daughter. The applicant’s mother lives at a temple in her hometown. The applicant’s father’s family takes care of her. The applicant’s father passed away more than ten years ago before the applicant left Malaysia.

5. Prior to the onset of the COVID-19 Pandemic, the applicant tried to send money from Australia to her mother. The applicant’s father’s family takes care of her. Since COVID, she has been unable to contact her mother. The applicant claims that she last sent money to her mother before COVID. After COVID, the applicant claims that she has not been able to contact her mother and cannot contact her father’s family either. She speculates that they may have changed phone numbers.

6. The applicant attended both primary and secondary school in Malaysia. She finished secondary school, or instead dropped out of secondary school, in 1997, after which she sought part-time work. The applicant has experience working [in] a [workplace] and doing jobs in sales. The last job the applicant had before she came to Australia was as a [occupation] in a [workplace], working on average three or four days, six or seven hours per day. The applicant claims that she wanted to work more, but they would send her home because they were not busy.

7. In Australia, the applicant worked [as] a [occupation]. Her employer then decided that her English language skills were not good enough. The applicant then obtained employment in a factory on a part-time basis, working, she claims, roughly 40 hours per week on average. The applicant worked there until August 2023, when she claims she had trouble breathing because she thought the factory was too cold for her to work in. She is currently unemployed. The applicant’s husband is working and supports her.

8. The applicant told me her husband is from Malaysia and on a bridging visa. The applicant’s evidence was that she was unsure why he was on a bridging visa and did not know how long he had been on a bridging visa. The applicant claims that if she were to return to Malaysia, it would be hard for her because of the economy.

9. She claims that she would like to apply for a government allowance, but it would be too slow to obtain that allowance. The applicant claims that she had previous difficulties applying for government assistance between 1999 and when she left for Australia. The applicant could not be more specific about when she had these difficulties. When I asked the applicant why she considered her applications were processed slowly, the applicant claimed it was because of her Chinese ethnicity.

10. When pressed as to why she reached this conclusion, she said, ‘I guessed myself’, and referred to a Malay friend having made an application that was approved very quickly. The applicant could not recall when she last applied for assistance. She was not sure what year her Malay friend had their application approved, which led to her conclusion that her application was being dealt with slowly because of discrimination. I asked the applicant about the political issue referred to in her protection visa application, and she confirmed that the political issue was a reference to the slow processing of welfare applications.

11. The applicant claims that in Malaysia, a lot of job applications require a high school certificate which she does not have. She claims that, as a result, it makes it hard for her to apply for jobs. As I clarified with the applicant, she eventually conceded that it was not hard for her to obtain employment, but rather, her lack of education made it difficult to obtain employment at a sufficient level of income to support herself and her family.

12. The applicant further claimed that if she was returned to Malaysia she would have to find a place to rent a room. She claimed that the rental fees in Malaysia are higher as a percentage of income as compared to in Australia. The applicant claimed that the owner of the house would want to make sure that she had a job, and the applicant claimed that if she was returned to Malaysia, she cannot guarantee that her husband would fully support her.

13. I asked the applicant why it was she felt that her husband might not fully support her and she claimed that neither of them have high education so it would be difficult to find a job. I asked the applicant whether there was anything else she would like to raise in support of her claims for protection, and the applicant claimed that she was thinking about starting a course in nursing or aged care; however, she is worried that her English is not sufficient to start that course.

14. The applicant claims to be, and I accept she is, a hardworking person. When I asked why she could not obtain employment, the applicant claimed it was not because she could not get employment, but because the salary is very small. The issue, the applicant confirmed, is not that she would be unable to obtain employment but rather that her salary would be insufficient.

15. I put to the applicant that the economic circumstances in Malaysia did not appear to involve persecution for a section 5J(1)(a) reason. The applicant responded by claiming that what is available online about Malaysia is ‘fake news’. That did not address the question that I had asked. When I asked the question again, the applicant repeated that she could not afford to live. The applicant claimed her salary would be ‘barely enough for accommodation and food’. The phrase ‘barely enough for accommodation and food’ is a quote from the applicant.

16. I put to the applicant that she has not been supporting her mother for the last four years. The applicant then claimed she had continued sending money to her father’s family. That was somewhat inconsistent with the evidence given at the outset of the hearing by the applicant that she had not sent any money to her mother since before COVID. In any event, I place no weight on that inconsistency.

17. I asked the applicant whether she intended to apply for protection when she left Malaysia to come to Australia, and she said she did not. She explained that whilst she was here, she searched for the information to apply online and asked a friend for assistance. The applicant claims that her friend told her she could apply for this type of visa. She had considered applying for a student visa but was not confident about whether she would obtain that visa. As a result she applied for this protection visa.

18. I asked the applicant about the words used in her protection visa application. In particular, in relation to questions 96 and 93, The applicant confirmed that they were her words and that her friend did not tell her to write those. The applicant was clear that her friend did not write the words for her and confirmed that she ticked no on the visa application in response to the question about whether she had obtained assistance. I then put question 93 on the protection visa application to the applicant. I asked whether that was what she typed, and the applicant claimed, then, that she did not quite remember, and then claimed that as she remembers, she just wrote ‘economic problem’.

19. I asked the applicant whether she met her husband before or after her application for a protection visa, and she could not recall. The applicant confirmed that she wanted to stay here in Australia.

SECTION 424AA

1. During the hearing, I put material to the applicant pursuant to section 424AA of the Act. That information was that the Tribunal had before it information which suggested that multiple applicants had made identical protection visa applications, insofar as the claims are concerned, to that which was included in the applicant’s application.

2. Those applicants came from the same address as the applicant claimed to have lived in and some were lodged before she lodged her protection visa application. The applicant confirmed that she understood why the information was relevant to the review. The applicant did not want to adjourn or take a break prior to responding and when I asked the applicant to respond, her response was, ‘no comment’.

3. Despite pressing further, the applicant was not able to satisfactorily explain why her protection visa application is identical to that made by other visa applicants, particularly having regard to her evidence that she completed her own visa application form.

4. Finally, for completeness, I note that I asked the applicant whether she was a member of any political party or feared harm on that account. The applicant conceded that she had not been a member of any political party and she did not fear harm on that account.

CONSIDERATION OF THE APPLICANT’S CLAIMS AND CREDIBILITY

1. As I have already noted, the issue in this application is whether the applicant meets the refugee criterion for protection, or alternatively, the complementary protection criterion for protection. The applicant is responsible for specifying all particulars of her claim to be a person in respect of whom Australia has protection obligations and provide sufficient evidence to establish the claim. The Tribunal has no responsibility or obligation to specify or assist an applicant in specifying any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing their claims. I am not required to uncritically accept any or all of the allegations made by an applicant. I do not need rebutting evidence before I can find that a particular factual assertion is not made.

2. Assessing credibility is a difficult task which should be conducted fairly and reasonably. Inconsistencies in an applicant’s account may or may not be significant. When an account is given through an interpreter, I should make allowances for that. I should give the benefit of the doubt to those are generally credible but unable to substantiate all of their claims.

OBSERVATIONS ABOUT APPLICANT'S EVIDENCE / CREDIBILITY

1. I have carefully considered the applicant’s evidence and claims, however, regrettably, I do not consider that the applicant was a particularly impressive witness.

2. As indicated, I put information to the applicant pursuant to section 424AA. It is of concern to me that the applicant was not able to adequately explain why her protection visa contained claims identical to those made in other matters before the Tribunal, including applications lodged by others some time before her applicants. That causes me some concern about her level of candour with the Tribunal.

3. For example, she may have claimed that the form was completed by someone else on her behalf, which might explain the level of similarity between multiple applications. The applicant did not make that claim. Moreover, the fairly vague evidence about the applicant’s past experiences in Malaysia, coupled with what appeared to be an inability, or perhaps unwillingness, to ascribe a proximate date to her experience since, caused me to have some concern about accepting her evidence at face value.

CRITERIA FOR PROTECTION

1. I now move to consider whether the applicant meets the criteria for protection.

COUNTRY OF NATIONALITY

1. The applicant travelled to Australia on a passport issued by Malaysia. I find that the applicant is a national of Malaysia and will assess the applicant as Malaysia as the receiving country.

DOES THE APPLICANT MEET THE REFUGEE CRITERION?

1. To satisfy the criterion in section 36(2)(a), the applicant must satisfy the Tribunal they are a refugee. Whether the applicant is a refugee is determined by section 5H(1)(a) of the Act.

2. To be a refugee, the applicant must have a well-founded fear of persecution.

3. What constitutes a well-founded fear of persecution for the purposes of the act is set out in section 5J and requires the applicant to satisfy the Tribunal that, among other things:

   (a)they face a real chance of persecution. A real chance is one that is not remote or farfetched and can arise even when the probability of harm occurring is less than 50 per cent;

   (b)the persecution must involve serious harm, having regard to the examples of serious harm set out in section 5J(5).

   (c)persecution involves systematic and discriminatory conduct which directs attention to the motivation of the persecutor and whether the persecutor’s actions are intentional; and

   (d)that the essential and significant reason for persecution is one or more of the applicant’s race, religion, nationality, membership of a particular social group or political opinion.

4. I now turn to the claims made by the applicant.

DOES THE APPLICANT HAVE A WELL-FOUNDED FEAR OF PERSECUTION BECAUSE OF THE ECONOMIC CIRCUMSTANCES IN MALAYSIA, INCLUDING HER INABILITY TO OBTAIN EMPLOYMENT, MAINTAIN HERSELF AND HER FAMILY?

1. The applicant has claimed that they are entitled to protection because of the economic circumstances in Malaysia, including her inability to obtain employment and inability to maintain herself and her family. The applicant has claimed that she will be discriminated against because of her Chinese ethnicity. I accept that the applicant has Chinese ethnicity as claimed.

2. Whilst not specifically claimed by the applicant, I have considered whether persons who did not complete high school constitute a particular social group. I do not accept that persons who did not complete high school, or alternatively even, persons who do not have certificates indicating completion of high school, would form a particular social group for the purposes of the Act.

3. I do not consider that, having not completed high school or lacking those certificates is a characteristic that can be described as innate or immutable, or that it is a characteristic that is fundamental to the applicant’s identity or conscious, as required under section 5L(c) of the Act.

4. In any event, I am not satisfied, on the evidence, that the applicant would be discriminated against for the essential and significant reason of being a member of that group. Rather, any impact that would occur to the applicant in that regard would be on account of having not completed high school as opposed to forming part of or being a member of that particular social group.

5. In any event, as discussed with the applicant during the hearing, credible country information indicates to me that, among other things, Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line falling from 50 per cent in the 1960s to less than 1 per cent in 2021. Poverty is more likely among the Malay ethnic group than people who are ethnically Chinese.

6. According to the Malaysian Department of Statistics’ August 2023 figures, the unemployment rate in Malaysia was 3.4 per cent, lower than the 3.7 per cent in Australia during the same period, and that the government approved the introduction of unemployment benefits and allowances and support for training in October 2017. I further note that DFAT has previous reported that unemployment was typically lower for Chinese Malaysians than it was for Bumiputera, in other words, indigenous Malays, or Indian Malays.

7. In any event, consistent with the applicant’s evidence, I find that if the applicant was to return to Malaysia, she would be able to obtain employment.

8. I am not satisfied that the Malaysian Government fails to progress welfare or other applications by Chinese Malaysians on account of their ethnicity, or otherwise seek to discriminate against them on account of their ethnicity, as claimed by the applicant. The country information does not support that conclusion.

9. I am not satisfied that the applicant would be persecuted for the essential and significant reason of her ethnicity.

1. As indicated, I am also not satisfied that the applicant would be persecuted for the essential and significant reason of being a member of a particular social group comprising persons who have not completed high school or have the relevant certificates. Moreover, I do not accept, contrary to the applicant’s claims, that the information from the Malaysian Department of Statistics is imprecise, false, or fake, as the applicant appeared to suggest.

2. In all the circumstances, I am not satisfied that there is a real chance that the applicant would face serious harm in Malaysia on account of the economic conditions, including experiencing a lower income than she might experience here in Australia, or that the population more generally in Malaysia might experience.

3. Whilst I accept that the applicant can earn more money here in Australia, perhaps even substantially more money, I am not satisfied that the economic circumstances in Malaysia which the applicant would experience on and after her return would involve either:

   (a)significant economic hardship that would threaten her capacity to subsist;

   (b)a denial of access to basic services which would threaten her capacity to subsist; or

   (c)a denial of the capacity to earn a livelihood of any kind where that denial would threaten her capacity to subsist.

4. I am not satisfied that the applicant’s support of her mother, to the extent that support remains necessary, would change, or effect those findings.

5. On the basis of credible country information, which I prefer, I am not satisfied that the speed at which the Malaysian Government would progress any welfare application would be effected for reasons of the applicant’s ethnicity or any other reason. Moreover, in the circumstances, I am not satisfied and do not accept that the economic circumstances in Malaysia would involve serious harm or would apply to the applicant for the essential and significant reason of her race, religion, nationality, membership of a particular social group or political opinion.

6. That is to say, I am not satisfied that the applicant’s Chinese ethnicity would be the reason for any economic harm that the applicant claims she may experience in Malaysia.

7. The effect of these findings is that I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of section 5J of the Act. It follows that the applicant is not a refugee within the meaning of the Act based on their claims as to economic circumstances and hardship in Malaysia.

DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

1. Having determined that the applicant does not meet the refugee criterion, I have considered the alternative criterion in section 36(2)(aa).

2. To be entitled to complementary protection there must be substantial grounds for believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk they will face significant harm.

3. The real risk test, of course, is the same standard as the real chance test applicable to the assessment of well-founded fear. Significant harm is exhaustively defined in section 36(2A) of the Act.

4. I have not accepted that the economic circumstances that would apply to the applicant on her return to Malaysia would result in her facing a real chance of serious harm. It follows that, on that basis, I am not satisfied that the economic circumstances in Malaysia, on the applicant’s return, would lead to a real risk of her suffering significant harm. I further note that the economic conditions in Malaysia would not be inflicted upon the applicant by an act or omission of a person in Malaysia.

5. I note that the circumstances said to meet the definition of cruel or inhumane treatment or punishment, or degrading treatment or punishment, must arise from the act or omission of a person in Malaysia.[1]

   [1] GLD18 v Minister for Home Affairs [2020] FCAFC 2

6. Even if I had been satisfied that there was a real risk of significant harm to the applicant on account of the economic conditions, I consider that those economic conditions would constitute a risk that is faced by the population generally, and not the applicant specifically or a person in the applicant’s position specifically. In those circumstances, section 36(2B) provides there is taken not to be a real risk that a non-citizen would suffer significant harm.

7. In the circumstances, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk the applicant will face significant harm.

CUMULATIVE CONSIDERATION OF CLAIMS

1. I have also considered the applicant’s claims cumulatively. There is no feature of any of the applicant’s claims that I consider cumulatively with one or more of the other claims would lead me to conclude that:

   (a)the applicant has a well-founded fear of persecution within the meaning of section 5J such as to qualify as a refugee; or

   (b)that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk they will significant harm.

2. I find the applicant does not meet the complementary criterion for protection in section 36(2)(aa) of the Act.

DECISION

1. The Tribunal affirms the decision not the grant the applicant a protection visa. The time is 12.32 pm on 8 January 2024.

   This is a transcript of the decision, and reasons for decision, given by Member F Robertson on 8 January 2024 edited to correct matters of grammar and infelicity of expression without variation to the substance thereof.