1832131 (Refugee) - [2024] AATA 1810

1832131 (Refugee) [2024] AATA 1810 (28 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1832131
CASE NUMBER:  1832135
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Adrienne Anderson
DATE:28 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.

Statement made on 28 May 2024 at 3:22pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – riots and terrorism – robberies and other serious crime – race – ethnic Chinese – economic conditions in Malaysia – the victim of property crime – any economic hardship that the first applicant may face on return to Malaysia does not fall within the definition of ‘significant harm’ – not satisfied the applicant has a real chance of suffering serious or significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is a combined 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 applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant (the first applicant) and second-named applicant (the second applicant), who claim to be citizens of Malaysia, are engaged to be married. They jointly applied for the visa on 13 March 2018. The second applicant did not make her own claims to protection in that application. The delegate refused to grant the visa on the basis that they did not meet the criteria for a protection visa. This decision was contained within a single decision record.
Each applicant made a separate application for review to the Tribunal in respect of the same decision record. On 22 March 2024 the Tribunal obtained the applicants’ consent to have a combined hearing in respect of their applications.
The applicants appeared before the Tribunal on 10 May 2024 to give evidence and present arguments. At the commencement of the hearing, the second applicant confirmed that she did not have her own claims to protection and that she did not wish to give evidence. The Tribunal received evidence from the first applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants gave their consent to the Tribunal at the hearing to make a combined decision in respect of their applications.
CLAIMS AND EVIDENCE
First applicant’s personal background
The first applicant is a [age]-year-old man from [City 1], in Negeri Sembilan, Malaysia. He is of Chinese ethnicity and Buddhist faith. He resides with his fiancée, the second applicant. They do not have any children.
The first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1832131 (Refugee)

Details

AGLC: 1832131 (Refugee) [2024] AATA 1810
Case: [2024] AATA 1810
Decision Date: 28 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa applications of a Malaysian couple, the first applicant being a [age]-year-old ethnic Chinese Buddhist man from Negeri Sembilan. The applicants arrived in Australia in September 2016, later returning to Malaysia for a period before re-entering Australia and applying for protection visas in March 2018. The first applicant's claims for protection were based on alleged riots and terrorism, insecurity due to robberies and serious crime, and poor government leadership and corruption.

The Tribunal was required to determine whether the first applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by the Migration Act 1958, or whether he faced a real risk of suffering significant harm as a necessary and foreseeable consequence of removal to Malaysia. This involved assessing the genuineness of his claims, particularly in light of his stated intention to seek work with longer hours and his return to Malaysia.

The Tribunal found that the first applicant's primary motivation for seeking a protection visa appeared to be economic, to obtain more favourable working hours and a better lifestyle, rather than a genuine fear of persecution. While acknowledging he had been a victim of property crime in 2015, the Tribunal was not satisfied that he faced a real chance of suffering serious or significant harm upon return to Malaysia. The Tribunal noted that the first applicant stated he did not fear harm from riots or terrorism and had not experienced such incidents personally. Furthermore, the Tribunal considered that any economic hardship he might face did not meet the definition of "significant harm" under the Act.

Consequently, the Tribunal affirmed the decision not to grant the applicants a protection visa, as they did not satisfy the criteria under section 36(2)(a) or 36(2)(aa) of the Migration Act 1958.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicants gave their consent to the Tribunal at the hearing to make a combined decision in respect of their applications. CLAIMS AND EVIDENCEFirst applicant’s personal background The first applicant is a [age]-year-old man from [City 1], in Negeri Sembilan, Malaysia. He is of Chinese ethnicity and Buddhist faith. He resides with his fiancée, the second applicant. They do not have any children. The first applicant was raised in a household with his maternal grandmother and a maternal uncle. His parents and younger brother currently reside in Negeri Sembilan. The first applicant completed secondary school in Malaysia. He worked as a [occupation] for several years before coming to Australia. In Australia, the first applicant works as a [occupation]. The applicants first arrived in Australia on [date] September 2016 on tourist visas. The applicants were subsequently granted student visas in January 2017. In June 2017 the applicants returned to Malaysia for approximately a month, returning to Australia on [date] July 2017. The applicants applied for a protection visa on 13 March 2018.First applicant’s protection claimsBefore the Department In his protection visa application form, the first applicant stated that he left Malaysia for the following reasons: a.Riots and terrorism;b.Feeling insecure because of robberies and other serious crime;c.Poor government leadership and corruption. In response to a question asking if the authorities can or will protect him, the first applicant stated that all the authorities are Muslim and that there is no protection for non-Muslims, namely people of Chinese and Indian ethnicity. The applicants were not invited to attend an interview with the Department and no further material was provided by the first applicant in support of his claims. Before the Tribunal At hearing, the first applicant maintained and elaborated on the above claims. He stated that he came to Australia for economic reasons, to get the lifestyle that he wanted. He attended English classes on his student visa and returned to Malaysia to sort personal affairs including his insurance and bank accounts. After his return to Australia, he subsequently applied for a protection visa because he wanted to be able to work longer hours. He had a job lined up where his employer wanted him to be able to work full-time hours, which his student visa conditions did not allow. The first applicant explained at hearing that his claims of government corruption and poor leadership related to the economic conditions in Malaysia. This was because at the same time that the country was facing issues of corruption, the house prices and cost of living went up and monthly salaries went down. He stated that he could not have the way of life that he wanted in Malaysia and that he wanted to stay in Australia to make money, start a family and have a good life. In relation to his claims to fear rioting and terrorism in Malaysia, the first applicant stated at hearing that he did not fear harm in this regard. He and his fiancée did not think about such things when they lived in Malaysia and had not had any personal experiences in relation to demonstrations or other public incidents. He stated that his main concern was his economic situation in Malaysia.

Decision

Reasons for decision

There is no suggestion that the applicants satisfy 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 applicants do not satisfy any of the criteria in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicants a protection visa.Adrienne AndersonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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.FINDINGS AND REASONS As outlined above, the first applicant stated at hearing that he applied for a protection visa in order to access more favourable working hours and because his employer did not want to accept someone on a student visa. At hearing, the Tribunal put to the first applicant its concerns that he may not have a subjective fear of persecution as claimed because he returned to Malaysia in 2017 and because he had stated that he applied for a protection visa so that he could work longer hours. The first applicant responded that he returned to Malaysia briefly to sort out matters relating to his finances that he could not do from Australia because the bank did not accept his overseas number. The Tribunal has considered this explanation. While it has doubts as to the genuine nature of the first applicant’s fear in relation to his claims the Tribunal has nonetheless considered his claims in relation to the refugee and complementary protection criteria in ss 36(2)(a) and 36(2)(aa) below. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicants travelled to Australia on apparently genuine Malaysian passports, copies of which were provided to the Department and Tribunal. The applicants have consistently stated that they are citizens of Malaysia and have been assessed as such by the Department. The Tribunal accepts that they are Malaysian citizens and finds Malaysia to be the country of nationality and receiving country. Risk of harm on the basis of crime The Tribunal accepts the first applicant’s evidence that he was the victim of property crime in Malaysia in 2015. At hearing the Tribunal discussed with the first applicant that it needed to consider whether he faced a real chance of serious harm on return to Malaysia now or in the reasonably foreseeable future and that it needed to be satisfied that any harm feared would rise to the level of serious harm and be directed at him for one of the reasons listed in s 5J(1)(a) of the Act.