1832557 (Refugee)

1832557 (Refugee) [2024] AATA 3121 (8 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1832557
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Garry Fitzgerald SC
DATE:8 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 08 August 2024 at 12:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – economic conditions – no past harm or fear of future harm – application completed by another person and lodged without applicants seeing it – more claims made at hearing – borrowed money for marriage ceremonies – necessity to pay bribes to get work projects – mockery as unsuccessful returnees without children – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZYPB v MIAC [2012] FMCA 226
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZBQJ v MIAC [2005] FCA 143
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 of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of Malaysia. They applied for the visas on 18 April 2018. On 24 October 2018, the delegate refused to grant them the visas.
Their application for review was reinstated by the Tribunal on 16 May 2024, following its initial dismissal for non-appearance by the applicants at a hearing scheduled on 9 May 2024.
The applicants appeared before the Tribunal at a rescheduled hearing on 18 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are:
a.whether there is a real chance that, if the applicants return to Malaysia, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and, if not,
b.whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relationship of first and second applicants
The applicants say that they are married. However, their Departmental application [1] refers to different dates for their marriage in [Date 1]. It also describes their relationship as being ‘de facto’. At the hearing, they gave yet another date for their marriage ([Date 2) and finally corrected the date of their marriage as being on [Date 3].
[1]Application for protection visa lodged on 18 April 2018, at pages 2, 4 ([Day 1, Month 1, Year], [Day 2, Month 1, Year]).
To clear up this confusion, the Tribunal requested a certified copy of their marriage certificate after the hearing. This was produced on 20 June 2024. It certifies that they were married according to Sabah Native Customs on [Date 4] in [Town] in the state of Sabah in Malaysia. [2]
[2]Sabah Native Marriage Certificate certified [in] June 2024. They also produced photographs which they said showed [Date, Year 3] was their engagement date, with their marriage taking place on [Day 1, Month, Year]. In any event, the Tribunal accepts that they were married in Malaysia, as set out in the certificate.
The Tribunal accepts that that the applicants married in Malaysia. It will refer in this decision to the primary applicant as the husband and the secondary applicant as the wife, or to both of them as the applicants.
Nationality, country of reference and receiving country
The applicants’ nationality is not in issue. The Department was satisfied as to the identity documents which they produced. The Tribunal accepts that the applicants are Malaysian citizens. Accordingly, Malaysia is the country of reference and receiving country for their application for a protection visa.
The applicants’ immigration and travel background
The applicants arrived in Australia [in] December 2017 on tourist visas (UD-601). They applied for protection visas on 18 April 2018. They have not travelled to any other countries. They have remained in Australia since arriving.
The applicants’ personal background
The applicants are in their late [Decade].
The applicants’ background in Malaysia
The applicants were raised and grew up in villages in the vicinity of the town of [Town] in the state of Sabah. The husband grew up in a village about 3 km from this town. His wife grew up in another neighbouring village, also about 3 km from the town.
They both have large families living in Malaysia. Their relatives in Malaysia still live in Sabah.
The husband’s mother still lives in his village. He has [siblings], ranging in age from [Ages]. His father died in 2014.
The wife’s mother still lives in her village. She has [siblings] aged up to over [Age] years. She is the [birth order] of the children. Her father died in 1998.
Most of their siblings are living with their in-laws in Sabah. Most are self-employed or work in agriculture.
The applicants attended school in [Town]. Both completed their middle high school certificates (SPM), [3] leaving school after Fifth Form. The husband completed his SPM in [Year]. The wife completed hers in [Year].
[3] Sijil Pelajaran Malaysia (SPM), or the Malaysian Certificate of Education.
After school, the husband went to work in Kota Kinabalu in 2012. He worked in a [workplace 1] as [an occupation 1] and in a shop, for about a year. In 2013 he went back to his village to work as a contractor with his father. They worked as [job task 1] contractors in the village. They [did job tasks 1], among other things. He learned the trade from his father, on-the-job. He did this for about a year or so; then his father became ill, eventually dying in 2014. While his father was ill, they spent a lot of their savings on medication for him. After his father died he could not get any [job task 1] projects, so eventually he had to give up this work.
The wife never did any paid work while she was in Malaysia but would help her family with house or farm work as required.
Their ethnicity is Murut, or native Sabah.
They are both Christians: in particular, [Branch of Christianity] Christians. They were religious while they were in Malaysia, attending church weekly.
The husband was briefly a member of a national political party called UMNO (which he said stood for United Malays National Organisation). He was a member in 2013 and 2014, while his father was alive. He described the party as being pro-Malay. He ceased any political activity in Malaysia in about 2014.
The wife was not a member of a political party, nor politically active in Malaysia.
The applicants’ background in Australia
While in Australia they have only lived in [Suburb], a suburb in Melbourne.
They have both worked at the same places doing similar jobs during their time in Australia. They worked at [workplace 2] for about a year after first arriving, and then worked for about two to three years at [a workplace 3]. After that, they have been working at a factory which [does job task 2] for use in Australia. They work as [occupation 2]s. They have been there two years.
Both obtained their ‘[Certification]’ which is a health and safety certification for work in [a work sector]. The wife is planning to study English, but she has not started yet.
They have no other family in Australia.
They are still religious in Australia. They attend church weekly in [Suburb].
They are not members of political parties or politically active in Australia.
The applicants’ claims for protection
Introduction
The applicants agreed at the hearing that their claims were economic in nature, but additional claims were made in the course of the hearing.
Claims in the Departmental application
In the Departmental application, the applicants made substantially identical claims, that they had left Malaysia because:
‘I just married but stress when i can found a job to start my life with my wife. It's very stressful when no money to buy something precious for my wife like others even i work as a contractor. The money i receive just enough to manage my small business.’ [4]
[4]Departmental application, at pages 18-19. Reproduced as written.
They also stated in the application that they had not experienced harm in Malaysia and did not think they would be harmed or mistreated if they returned. [5]
[5]Departmental application, at pages 18-19.
When asked in the application what they thought would happen to them if they returned to Malaysia, the husband said, ‘Everyone has right to choose the country to move on if the don't like their country’; [6] and the wife said, ‘Everyone has the right to life, liberty and security of person. I think that Australia is one of country which have the better human right protection’. [7]
[6]Departmental application, at page 18. Reproduced as written.
[7]Departmental application, at page 19. Reproduced as written.
At the hearing, the applicants explained that the application had been completed for them by a Singaporean or Chinese man to whom they were referred after first arriving in Australia. They paid this man $200 AUD. They spoke to him on the telephone and met him, giving him the information he required to complete the form. They also told him their reasons for coming to Australia. They did not see or check the completed form before it was lodged. Indeed, at the hearing, they said it was the first time they had ever seen the form.
The applicants were taken to the form at the hearing: in particular, the passages setting out their claims for protection, at pages 17 to 19. In substance, they said that the reasons given in the form were correct and reflected what they said at the hearing (see below).
The Tribunal noted that the applicants stated ‘no’ to the questions asking whether they had experienced harm in Malaysia or whether they thought they would be harmed or mistreated if they returned there. They ultimately agreed that the only harm they had suffered in Malaysia or thought they would suffer if they returned was what they had told the Tribunal at the hearing (see below).
Claims made during the hearing
At the hearing, the applicants were asked to summarise why they left Malaysia and came to Australia in December 2017.
The husband said that they had come here then because:
a.economic conditions were not good in Malaysia at the time;
b.he had a lot of debt relating to his marriage ceremonies in [Years], having borrowed 20,000 Malaysian ringgit (MYR) [8] from his immediate family and from other relations;
c.it was hard to get a job or projects and it was necessary to pay bribes to get them;
d.they wanted to improve the economic status of their family.
[8]20,000 MYR is worth about AUD $6,866: accessed on 7 August 2024.
He said he was ‘surrounded by debt’ at that time. He has repaid about 10,000 MYR of the debt, so that he still owes about 10,000 MYR. [9]
[9]10,000 MYR is worth about AUD $3,433: accessed on 7 August 2024. The applicants provided in the June submissions about 25 pages of handwritten ledgers and notes in Malaysian, which the husband said was an incomplete record of the money borrowed for the wedding and the repayments.
He later said that he had suffered harm in Malaysia which caused him to leave because he felt very stressed and under pressure because of his debt. He said that when he had borrowed the money and did not pay it back, other villagers told him he was a ‘useless man’ because he could not repay his debt. However, he later said that repayments could only be made, according to local customs, when the children of the lenders got married or engaged or when there were other significant events such as funerals. The debt could not just be repaid whenever he wished. The tension between being criticised for not repaying the debt and being only able to repay the debt when certain contingencies eventuated was not explained.
The wife agreed with her husband as to their reasons for leaving Malaysia. She added that their financial and economic status was not good at the time. They also thought that they were young and they should travel.
They were asked if there were any other reasons why they came to Australia. They said there were not.
They were asked what they thought would happen to them if they returned to Malaysia. The husband said that he would not be able to obtain a job, because of his low education. He said that he and his wife had done poorly in the SPM. He said it would be difficult to get projects. He again said that the economy was not good in Malaysia. Finally he was concerned that he would be humiliated or mocked if he went back to Malaysia, ‘with nothing’ by the local villagers.
His wife agreed and added that they had been married for several years but she still did not have any children. She said that she would be stressed if she went back, because as a woman she must preserve her dignity by being able to give a child her husband. She said that she has IVF consultations in Melbourne. [10]
[10]Just before the hearing, the wife provided a copy of a letter dated 18 April 2024 from [Health services provider], regarding her first appointment for a fertility consultation at a clinic on 3 May 2024. She said she attended this consultation and subsequently attended for an ultrasound check and blood testing on 3 June 2024. She agreed that the clinic was still in the testing phase as to whether she had a fertility problem.
There were both asked why they had to go back to their villages in Sabah, rather than go to peninsular or other parts of Malaysia, such as Kuala Lumpur. It was suggested that these were places where they should have better prospects of obtaining well-paid work and they would be away from any stresses in the villages. Moreover, it was suggested that they had moved to another country, so moving within Malaysia should be less difficult. Their response was that as Sabah people, they might be discriminated against in other parts of Malaysia and as they had limited education, they might also have problems obtaining jobs.
The applicants were taken through the documents they provided on 11 June 2024 as additional submissions for the hearing (the June submissions), including an article by Leslie Chang entitled ‘Corruption issues among public servants’. The wife paid for this article to be translated but she did not know when it was published, where or who the author was. She agreed that it was probably published in about 2014, based on references provided in the article. The point they said that the article made was that corruption was widespread in Malaysia.
The applicants did not claim to have experienced any harm in Malaysia because of corruption in the past but they did claim they would be unable to obtain projects in the future without paying bribes.
The Tribunal referred the applicants to information in the then current DFAT country information for Malaysia. [11] These sections in effect said that corruption was widespread in Malaysia but that steps were being taken to combat it through criminal prosecutions and through an anti-corruption commission, which had prosecuted major politicians and taken action against hundreds of civil servants. The applicants did not take issue with this.
[11]DFAT Country Information Report Malaysia dated 29 June 2021, at pars 2.17 to 2.19. The corresponding sections in the most recent country information by DFAT are pars. 2.20-2.23 of the DFAT Country Information Report Malaysia dated 24 June 2024 (DFAT Report).
The June submissions also included some articles from Malaysian media which the wife had herself translated from Malay into English. She said these were about how poor their villages were in Sabah. The Tribunal does not accept these articles as translated by the wife. It gives them no weight.
The applicants were also asked to comment on information on the economic overview for Malaysia according to DFAT and the World Bank, referred to later in these reasons. In response, they said that the overview did not take account of rural areas of Sabah where the standard of living was low. They also said that their opportunities to obtain work in peninsular Malaysia would be lower because it is a predominantly Muslim country and they are Christians. They said it would be difficult for them to get jobs.

They were asked about the Tribunal’s concern that there was no apparent refugee ground for most of their claims. They answered this by making a point about the incident in Lahad Datu which they said occurred in about 2013-2014. [12] The Tribunal asked whether it should give this matter any weight, as this was the first time they had brought this up. The Tribunal also noted that it was non-responsive. The Tribunal does not accept that this matter is a genuine concern to the applicants.
[12]The applicants did not elaborate on this, but the Tribunal understands they were referring to what is usually described as the Lahad Datu incursion or stand-off which place in early 2013 in eastern Sabah, in a small village about 100 km from the town of Lahad Datu. Militants had travelled from the southern Philippines to this village, calling themselves the Royal Sulu Force. They were led by the brother of the self-proclaimed Sultan of Sulu who claimed that Sabah was part of his Sultanate. Ultimately, Malaysian security forces (including the Royal Malaysian Police) cleared out the militants after six weeks of military operations in March 2013. The incursion resulted in the loss of 10 Malaysian security personnel while 68 militants were killed. Hundreds were arrested for various offences during the incident, with the Malaysian government labelling the intruders as terrorists and prosecuting them. It also announced the establishment of a security zone aimed at better protecting the eastern part of Sabah, based in Lahad Datu. There was concern among the locals in eastern Sabah about their security arising from this incident; but the Sultan died in 2015, the incident has not been repeated and security in eastern Sabah has been enhanced: ‘The Lahad Datu incursion and its impact on Malaysia’s security’, by J. Jawhar & K. Sariburaja, published in 2016 by the Southeast Asia Regional Centre for Counter-Terrorism, Ministry of Foreign Affairs Kuala Lumpur, Malaysia, at pages 5 – 9; ‘Esmail Kiram II, self-proclaimed Sultan of Sulu, dies at 75’, the New York Times, 21 September 2015, accessed on 7 August 2024; ‘Securing Sabah: issues, challenges and responses’ by L. W. Meng, published in the Journal of Public Security and Safety, Volume 4, Number 2/2015, at page 75; ‘Lahad Datu economy bounces back 11 years after Tanduo incident into growth’, Bernama, 19 March 2024, at bernama.com/en/bfokus/news.php?id=2280432, accessed on 7 August 2024. The incident is not mentioned in the DFAT Report.
They were also asked about how there was a real chance they would suffer serious or significant harm if they returned to Malaysia. The statutory definitions of these terms were explained. It was pointed out, among other things, that the stress, humiliation and mockery to which they referred would not ordinarily amount to a real chance of serious or significant harm. The husband then told a vague story about how his uncles and father had had a dispute over land which it ended up in some formal setting and that there had been a family breakdown over this. He said that they did not want that to happen with them. The wife said that perhaps their reasons for protection were not so strong, but they were true.
No other claims
At the end of the examination on the Departmental application, the June submissions and generally as to their protection claims, the applicants again confirmed that they had no other reasons to fear harm if they returned to Malaysia, apart from the claims set out above.
The Tribunal’s own review of the material before it does not suggest or disclose any other claim open to the applicant which clearly emerges from or on the material before it.
Credibility
When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants. On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[13] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[14] All these matters have been considered in the following findings in these reasons.
Findings
[13] Section 5AAA of the Act.
[14] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal found the applicant to be generally credible and reliable in giving evidence at the hearing, except for some opportunistic points which they made at the end of the hearing. These points are not accepted, as set out below. It otherwise accepts them as generally truthful witnesses, as to the facts they alleged or the sincerity of the beliefs or opinions they expressed.
The Tribunal therefore accepts that:
a.the applicants left Malaysia for economic reasons, due to their beliefs as to the poor state of its economy then; and
b.the applicants believe that they will have difficulties in obtaining work if they return, given the state of the Malaysian economy and as native Sabah Christians;
c.they have concerns about corruption in Malaysia;
d.they are concerned about stress, humiliation, mockery or embarrassment in their villages if they return to Malaysia due to their failure to repay the debt, not having children and not being successful returnees.
However, the Tribunal does not accept that:
a.the incident in Lahad Datu plays any genuine part in their protection application, as a reason why they left Malaysia or why they fear returning; and
b.the alleged land dispute plays any genuine part in their protection application, as a reason why they left Malaysia or why they fear returning.
REASONS FOR THE TRIBUNAL’S DECISION
Introduction
In this case, the applicants left Malaysia in search of better economic opportunities in Australia. They wish to remain here for the same reason. From their point of view, this is understandable.
However, the Tribunal must assess whether Australia’s protection obligations are engaged by their application: namely, whether they are refugees or entitled to complementary protection.
Assessment of refugee criterion
To be eligible for the grant of a protection visa as a refugee, it must be established that the applicants have a well-founded fear of persecution in Malaysia. This requires, among other things, establishing that there is a real chance they would be persecuted, if they returned there, because of their race, religion, nationality, membership of a particular social group or political opinion. A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility, even if it is below 50 per cent: Chan v MIEA (1989) 169 CLR 379. The persecution must involve serious harm to the person: s 5J(4)(b).
In this case, the applicants do not fear being persecuted for any of the refugee reasons required by s 5J(1)(a), which the applicants acknowledged in substance at the hearing; save for possible refugee reasons as to discrimination in obtaining work because of their ethnicity/race (native Sabah) or their religion (Christianity). As to these possible refugee reasons, the country information for Malaysia does not suggest that any such discrimination would rise to anything higher, at most, than low-level discrimination in the provision of services in Sabah and possibly in obtaining work outside Sabah. [15] There is not, in the Tribunal’s view, a real chance of serious harm being suffered by the applicants if they return to Malaysia as a result of their ethnicity/race or religion.
[15]Article 3(1) of Malaysia’s Constitution states ‘Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation’: DFAT Report, par. 3.37. Christians account for approximately 10 per cent of the Malaysian population. Most live in Sabah and Sarawak: DFAT Report, par. 3.75. DFAT assesses that Christians are generally not at risk of societal discrimination: DFAT Report, par. 3.79. People migrate from Sabah to peninsular Malaysia, due to better work opportunities and higher salaries: DFAT Report, par. 5.24. DFAT assesses that the indigenous peoples of Malaysia face a low risk of official discrimination in the form of inadequate service provision: DFAT Report, par. 3.10.
They did not leave Malaysia to flee any persecution, nor do they fear returning there because of any persecution; rather they sought and seek a better life financially in Australia. The Tribunal is not satisfied that there was any persecution of them by others when they left Malaysia nor would there be in the reasonably foreseeable future if they were to return.
The Tribunal finds that the applicants did not experience any harm or mistreatment in Malaysia in the past which amounted to serious harm. Section 5J(5) of the Act sets out non-limiting instances of serious harm. These instances point to a substantial injury or threat to the life, liberty, person, dignity or subsistence of the applicants. In this case, the most apposite instances of serious harm referred to in the section are those set out in s 5J(5)(d)–(f). Those instances require ‘significant economic hardship’, ‘denial of access to basic services’ or ‘denial of capacity to earn a livelihood of any kind’, which threaten the applicants’ capacity to subsist in Malaysia. [16]
[16]‘Subsistence’ denotes ‘the ability to continue to exist or remain in being’ (SZBQJ v MIAC [2005] FCA 143 at [11]) such that ‘the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being’: SZIGC v MIAC [2007] FCA 1725 at [23]. Furthermore, the hardship must be such that it would actually threaten the applicant’s capacity to subsist: see MZYPB v MIAC [2012] FMCA 226 at [13].
In the Tribunal’s assessment, any economic difficulties, if they return, in obtaining work and paying the balance of the debt owing would not constitute the ‘serious harm’ required for refugee protection. Based on the material before the Tribunal, the prospects are remote that the applicants would be unable to so subsist in Malaysia in the foreseeable future.
Indeed, the country information for Malaysia suggests that they should be able to subsist in that country. The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2022, real GDP growth was 8.7 per cent and per capita GDP was USD 11,993 (AUD 18,000). [17] Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Households living below the national poverty line of MYR 2,589 (AUD 864) fell from over 50 per cent in the 1960s, to less than less than 6.2 per cent in 2022. [18] In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors. [19] It has been reported that ‘Malaysia's labour market [will] remain in a state of full employment, with the unemployment rate remaining stable at 3.3 per cent throughout the year’. [20]
[17]DFAT Report, par. 2.7.
[18]DFAT Report, par. 2.8. However, poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states: par. 2.8.
[19]DFAT Report, par. 2.8.
[20]New Straits Times, 10 May 2024, at accessed on 7 August 2024.
Based on Malaysia’s strong overall economic and employment situation, as well as their own personal attributes (their work history and experience in Australia, the husband’s work experience in Malaysia and their youth), the applicants should be able to subsist in that country. In the Tribunal’s view this is so, even if they have limited education or even with any relative economic disparities between Sabah and peninsular Malaysia.
The other concerns of the applicants if they return – because of corruption or because of the claimed stress, humiliation, mocking or embarrassment due to the debt not being fully repaid, because they do not have a child or because they would not be successful returnees – while distressing or annoying for them, these do not come within the scope of ‘serious harm’. The Tribunal does not accept that there is any real chance of serious harm to the applicants arising from these concerns if they return. The prospects of this are remote.
The Tribunal therefore is not satisfied that:
a.the applicants fear persecution for any of the five refugee reasons if they return to Malaysia; and/or
b.there is a real chance that, if the applicants returned to Malaysia, they would suffer serious harm and be so persecuted.
Conclusion on refugee criterion
For the reasons given above, considering their claims separately, cumulatively and over time, the Tribunal is not satisfied that the applicants:
a.are refugees within the meaning of s 5H;
b.have a well-founded fear of persecution within the meaning of s 5J(1); and
c.are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Assessment of complementary protection criterion
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa): namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal from Australia to Malaysia, there is a real risk they would suffer significant harm, as exhaustively defined in s 36(2A) of the Act.
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition [21] (which applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J).
[21]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick & Jagot JJ, 20 March 2013) per Lander & Gordon JJ at [246], Besanko & Jagot JJ at [297], Flick J at [342].
Significant harm is defined in s 36(2A) of the Act as the arbitrary deprivation of life, infliction of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment of or to the applicant.
The Tribunal finds that the applicants did not experience any harm or mistreatment in Malaysia in the past which amounted to significant harm.
In the Tribunal’s view, any harm to the applicants as claimed if they return to Malaysia would not constitute significant harm. The harms and the risks claimed by the applicants, if they return, as set out above, do not rise to the level of significant harm or a real risk of that, by similar reasoning to that set out above. The prospects of such significant harm are remote.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal from Australia to Malaysia, there is a real risk that they will suffer significant harm.
The Tribunal is therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Assessment of family member
There is no suggestion that the applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Protection in another country
There is no evidence before the Tribunal to indicate that the applicants have any right to enter and reside in any country other than their country of nationality, Malaysia. Accordingly, s 36(3) of the Act does not apply in this case.
Conclusion
For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicants pursuant to s 36(2) of the Act.
Accordingly, the Tribunal has concluded that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Garry Fitzgerald SC
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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[2024] AATA 3121

8 August 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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