1835008 (REFUGEE) - [2024] ARTA 511

1835008 (REFUGEE) [2024] ARTA 511 (18 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 1835008
Tribunal:General Member J McLeod
Date:18 October 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(b)(i) of the Migration Act, on the basis that he is a member of the same family unit as [Ms A].[1]
[1] AAT case 2301601

Statement made on 18 October 2024 at 3.43pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – capacity to subsist – listed on credit register after defaulting on personal loan – late claim that loan from illegal lender – no corroborative evidence – economic conditions faced by population generally – member of family unit – wife’s separate application remitted on review – no evidence supporting claim that applicant at risk due to wife’s circumstances – genuine and continuing relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5F, 5H(1)(a), 5J(1), (4)(a), (c), 36(2)(a), (aa), (b)(i), (2B)(c), (2A), 65
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, arrived in Australia [in] January 2018 and applied for the visa on 29 March 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 24 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his wife ‘[Ms A]’, who herself, at that time, also had her case before the Tribunal for review. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
RELEVANT CRITERIA AND MANDATORY CONSIDERATIONS
Criteria for 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). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Sections 36(2)(b) provides as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a), who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
The definition of ‘member of the family unit’ appears in reg 1.12 of the Regulations. Relevantly, reg 1.12(3)-(4) state that:
(3) Sub regulation (4) has effect for the purposes of the main definition so far as it is relevant to a provision of the Act or these Regulations applying in relation to any of the following visas:
(a) a Protection (Class XA) visa;
…
(4) A person is a member of the family unit of another person (the family head) if the person is:
….
(a) a spouse or de facto partner of the family head;
…
‘Spouse’ is defined in s 5F of the Act as follows:
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)  For the purposes of subsection (1), persons are in a married relationship if:
(a)  they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)  they have a mutual commitment to a shared life as a married couple to the exclusion of all others; an
(c)  the relationship between them is genuine and continuing; an
(d)  they:
(i)  live together; or
(ii)  do not live separately and apart on a permanent basis.
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.
CLAIMS AND EVIDENCE
Applicant’s background
The applicant’s claimed nationality, identity and background, as provided in his protection visa application form, his passport (which was sighted at the Tribunal hearing), and his oral evidence given at the Tribunal hearing can be summarised as follows:
-He is a Malay Muslim and Malaysian citizen who born in a village near [District], Negeri Sembilan, Malaysia in [Year]. He grew up there, moving to different places around within the district, He has not lived in any other area of Malaysia. Before coming to Australia, he lived with his mother and sister in District].
-His mother and sister still reside together in the village. One of his brothers lives nearby with his own wife and his other brother lives in Seremban city. He is very close with his siblings. His father passed away last year. His father has another wife, and the applicant is also close with his four stepsiblings who also all live in [District].
-He attended six years of schooling. From when he was 12 years old, he worked to help support his family. His jobs included [job tasks]. He also performed jobs doing [job tasks], and he later [did a job task].
-He came to Australia when he was [Age] years old, and he is now [Age] years old. In Australia he has done [workplace 1] work, worked at [a workplace 2] and [a workplace 3]. His wife ‘[Ms A]’ also worked as some of these places.
-He is married to [Ms A], whom he met in Australia in 2018. They married on [Date]. They once separated for two months (around January) and they live together in Melbourne. [Ms A] attended the hearing and gave evidence.
Protection claims and evidence before the Department
In his protection visa application lodged in 2018, the applicant said he was seeking protection because had a problem with his personal loan (80,000 RM) and he wanted to obtain a better income to support his life and family.
He said he left Malaysia because he was required to repay all of this loan and needed to clear his name in the Central Credit Reference Information System (CCRIS), because he could not make any other transactions such as for a car, house or other property or for any other loan. He indicated he had not experienced harm but that he had been mistreated because his name had been blacklisted and so he could not engage in any transactions such as for a car, house or other property or get any other loans – and if he were to work, payment would be deducted from his salary.
He claimed that if he returns to Malaysia, he will have to settle the entire loan or he will be forbidden from engaging in any transactions. He needs to stay in Australia to obtain a job, repay the loan amount and clear his name, and earn a better income to support his family. He said the currency in Malaysia is three times lower than in Australia and there is too much unemployment, including among fresh graduates, so it is difficult to get a job.
He said the Malaysian authorities cannot do anything to help unless he repays the money and clears his name himself, and that relocation within Malaysia is not a viable option because the situation is the same throughout the country.
Delegate’s decision
At the primary stage, the applicant’s case was decided on the papers. The delegate refused the grant of the visa because the applicant had not claimed, and there was no information to suggest, that he would be targeted on his return to Malaysia for one or more of the reasons mentioned in s 5J(1)(a) of the Act. In assessing complementary protection, the delegate noted that the Malaysian economy had been growing at a steady rate over the past few decades, that there was a positive medium to long-term outlook, and that the Malaysian authorities had turned their attention to reducing poverty and improving the lives of citizens. Having regard to this, and noting the economic climate in Malaysia affects everyone, the delegate found that any economic hardship the applicant may suffer would not amount to significant harm. The delegate refused the grant of the visa for these reasons.
Protection claims and evidence before the Tribunal
Pre-hearing submission
On 12 February 2024, the applicant completed and sent to the Tribunal a ‘Pre-hearing information form’ advising among other things, that he was married to someone with her own case before the Tribunal. He also attached a statement containing new claims and supporting documentary evidence.
The applicant gave the following details in his statement:
-His situation has changed since he lodged his application.
-Around a year after arriving in Australia, he came to learn that his loan had actually been borrowed from an illegal loan service company and that his family had been threatened over his failure to repay. He has been told that the lenders are looking for him and will kill him and his family if he does not pay the outstanding balance.
-The lenders are claiming that he still owes them MYR 80,000, though they have not shown him the document or agreement that he signed in taking out the loan and he has been paying MYR 1000 per month (and making two payments per month when he can). The outstanding debt amount should be reducing but it is not, and the lenders claim he has only been repaying the interest.
-Four years ago, his close friend told him about some incidents that he heard about from the applicant’s [sister] ‘[Ms B]’ who lives with their mother. His friend advised that the lenders are looking for him and have threatened his family and also his neighbourhood. They splashed red paint on his neighbour’s car with a warning notice. His [sister] lodged a police report at [a] police station and while the investigation is ongoing, there has been no response from the police about this.
-His friend helps look after his family in Malaysia. The applicant only contacts his family through this friend to prevent the loan shark from knowing his location.
-Following this, his mother and sister have moved back to their hometown in [District] Negeri Sembilan (a small town and rural area), hoping the loan shark won’t bother them again.
-As recently as 2020, the loan sharks have issued death threats, including by sending a warning notice with an edited private family photo to all his relatives, old friend and new neighbours to publicly embarrass him.
-He is now married, and he fears for himself, and for his wife returning back to Malaysia with him. It will affect her mental health and trigger her anxiety and traumatic history. She has just miscarried their first pregnancy after three years of waiting.
The applicant also submitted documentary evidence including the police report lodged by his sister, a photograph of a threatening letter received by the family and screenshots of text message conversations in Malay (accompanied by translations) between the applicant and his friend, and the applicant and his sister.
Tribunal hearing (April 2024)
The applicant gave further evidence about the loan and his problems with the lenders at the Tribunal hearing.
He said he borrowed the money in October 2017 because he hadn’t been paid for several [job task] jobs and he needed to pay his workers. At that time, he had believed the lender was a registered lending company and he entered an agreement with them to repay their MYR 80,000 plus interest over nine years via monthly payments of MYR 1000, and that over the course of the loan he expected to pay a total of MYR 110,000).
Contrary to his written statement (February 2024) where the applicant indicated that he only found out a year after coming to Australia that the lenders were not licenced and were illegal loan sharks, at the hearing, he gave evidence about realising this, and confronting the lenders over it, while he was still in Malaysia. His oral evidence was that he had come to realise they were actually a loan shark syndicate when he noticed on the loan tracking app the company used, that even meeting his first two monthly repayments, the total debt had increased, and they insisted this was correct. He also noticed that the next instalment he was expected to pay was for one and a half thousand. He said he challenged this, in-person at their office in December 2017, but the company claimed the amount had increased because he had been late by two or three days with his payments. He asked the company how they expected him to settle the loan and they advised him to repay MYR 2000 per month. He knew at that point that they were not registered lenders. He said he knew that loan sharks threaten borrowers, and he believed no matter how much he paid, the debt would never be settled. So, he started thinking about changing jobs, and moving countries.
Contrary to his written statement which inferred he had made a greater number of repayments and sometimes made two repayments per month, at the hearing, he said he only ever repaid MYR 2000, across two payments towards the MYR 80,000 loan. This included: (1) one payment of MYR 1000 in November 2017; and (2) one payment of MYR 1000 in December 2017. He confirmed that this is the total amount he has repaid and that he has not contributed anything towards the loan since December 2017, for more than six years.
The applicant told the Tribunal that apart from receiving from threatening text messages from the company, he did not have any more interactions with the company since December 2017. He sold his car and motorbike and prepared to leave. Each payment was due on the 27^th of each month and he left Malaysia for Australia [in] January 2018, before the next (third) payment was due on 27 January 2018. He said they sent him threatening text messages a week before he came to Australia, where they accused him of missing a repayment and threatened that if he didn’t pay, they would come to his house looking for his family. He said he never saw anyone from the company again, but they continued to threaten him. He worried about leaving his mother and sister there, so they moved house when he left Malaysia, to avoid being found. As a safety precaution, his mother and sister moved twice more within the [District] area.
The applicant told the Tribunal about further threats and incidents that occurred after he came to Australia.
He said that in early 2018, after he arrived in Australia, the lenders distributed photos of him and his family claiming they owe them money. He said they also posted on WhatsApp his family’s photo and a photo of him holding up his nationality identity card next to a pornographic photo of a male sex organ. He said they sent such photos to his brothers through WhatsApp trying to shame him and urging them to look for him. He believes they got their contact details from the loan application, as he had included their details.
He said that or before 25 December 2018, the lenders splashed red paint on the front gate of the home that his mother and sister had moved to, and that splashes also went onto his neighbour’s compound and car. He has no idea how the lenders found their new address. The lenders also sent a threatening letter. His sister lodged a police report about these matters on 25 December 2018, but no action was taken by them.
The applicant gave differing evidence to the Tribunal about whether any further incidents occurred after 2018.
-On the one hand, he confirmed that nothing further happened after paint splash and threatening letter (both in 2018) and the lenders have not contacted his brothers again either. They have tied to contact him, but he has changed his number, so they have been able to reach him.
-However, when the Tribunal put to the applicant that he had told the Tribunal in his February 2024 statement that the loan shark had issued death threats in 2020, the applicant agreed that they did, but he felt safe because he was already here. He then said that after 2018, something happened with his brothers – he said the lenders had spread the photos around (the ones mentioned above) but his brothers ignored them. He then said he isn’t sure if the loan sharks have been in contact with his brothers in the last few years, but he thinks they have been.

The Tribunal discussed with the applicant his documentary evidence including the police report lodged by his sister, a photograph of a threatening letter received by the family and screenshots of text message conversations in Malay (accompanied by translations) between the applicant and his friend, and the applicant and his sister.
His sister’s police report is dated 25 December 2018 and in Malay and is accompanied by an English translation. The report refers to the splashing of red paint on the family’s and the neighbour’s property/car and the threatening letter and alleges that the actions are connected to the applicant’s loan from an unlicenced money lender or Ah Long.
The Tribunal noted the applicant’s claim that no action had been taken by the police following the lodging of his sister’s repot, but as it pointed out to him, his sister did not specify who the lenders were, or give the police any real specifics to rely on. The applicant responded that his sister didn’t know the full story; she merely lodged a report to protect herself.
The applicant has also provided a photo of the threatening letter, which he says was forwarded to him from his friend. The letter seeks to address the applicant’s neighbours, telling them that their neighbour at house number eight has borrowed money and does not want to repay the lender. It calls on the neighbours to tell the house occupants to call them and settle the debt, and threatens to burn the neighbour’s house, as well as the applicant’s family’s home if they don’t assist.
The Tribunal put to the applicant its concerns around the authenticity of the threat letter. It observed to the applicant that the letter is handwritten and looks unofficial. This, the Tribunal found surprising given he had otherwise claimed that the lenders had an office and they initially presented themselves to him as a professional, registered money lending outfit. The Tribunal expressed its scepticism that the lenders – even if illegal – would not try to present something more official looking to him. The applicant responded that he did not know and could not explain that, but the fact is, that they sent him a threatening letter when he failed to meet their repayments. The Tribunal later noted to the applicant that it considered there were credibility issues with this letter.
The applicant has also provided screenshots of text message conversations in Malay (accompanied by translations) between the applicant and his friend, and the applicant and his sister. The documents do not show any dates but when asked about the timing at the Tribunal hearing, the applicant said they are screenshots of messages sent to him in 2018.
The Tribunal discussed with the applicant the current state of his debt and the likelihood of future harm. It queried why he has not been trying to clear this debt and the applicant replied that the loan amount just kept increasing. The Tribunal put to the applicant that noting how worried he claims to be about his own safety and the safety of his family members, and he has been earning money while working in Australia, it is difficult to understand why he wouldn’t be trying to clear himself of the debt. He responded that he has tried to repay them, but he realised it wasn’t worth it because the amount would continue increasing and he would never be able to settle the debt. And, he added, that he refuses to repay them because they have threatened him. The Tribunal clarified that he was not trying to repay even the original amount he had been loaned and he said he did try, but they kept increasing the amount – to MYR 2000 per month, then MYR 3000 per month, and he could not afford this. The Tribunal noted that he had only repaid MYR 2000 of the 80,000 loaned to him and clarified with the applicant if he ever intended to repay the money. He said he would have liked to repay them but in view of their threats to him and his family, he feels this is not how things should be done. When this was later raised as a credibility issue with the applicant, he responded that he would like to resume paying them, but they have not provided him with details as to how much is owing and how much he should be repaying, so he was at a loss as to whether he should try to repay them.
The Tribunal observed to the applicant that he had claimed the loan sharks were given his brothers’ contact details but that it doesn’t seem the loan sharks have been threatening them or pressuring them to pay any money. He responded that the loan sharks merely want him to keep paying them, so they have splashed the paint, spread the photos around in the hope that he will resume payment. The Tribunal put to him that as he hasn’t resumed payment in six years, and they have his brothers’ details, so it is interesting that they hadn’t been in contact with his brothers or pressuring them in any way. He responded that his brothers live in separate places, and they have two phones each, so they ignore messages from the loan shark. The Tribunal further noted that given the loan sharks were able to find his mother and sister when he had not provided their details so, it seemed strange they could not find or manage to contact his brothers, whose details he had given them. The applicant responded that one of his brothers moves around the state installing telecommunication towers for his work, and only stays in each place around one month.
The Tribunal raised with the applicant its concerns that in his initial written visa application, he said he had a loan of MYR 80,000 but that his concern was all about trying to clear his name in the Central Credit Reference Information System. The applicant responded that he needs to amend that, because he had asked a friend to assist with his application, and he wasn’t sure at that time whether or not he had been blacklisted. The Tribunal put to the applicant that he made no mention at all of borrowing from loan sharks or having any fear of loan sharks. The applicant responded that he didn’t know what reason he was supposed to provide in the form - he just thought he had to tell the Department that he was in debt. When it was raised with the applicant that the Tribunal would need to consider whether he had a reasonable explanation for not raising certain claims or providing evidence before the Department’s decision was made on his case, he responded that his application had contained a lot of errors.
No further information or evidence was provided about these matters.
REASONS AND FINDINGS
Does the applicant satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act?
The first issue to be determined in this case are whether the applicant meets s 36(2)(a) or s 36(2)(aa) by virtue of his own protection claims.
Findings relating to loan shark debt
The Tribunal has considered the applicant’s claims and evidence about the lenders, the loan details and his repayments, and the threats and incidents.
However, the Tribunal has a myriad of credibility concerns. The differences between the applicant’s written statement and his oral evidence - for example, about realising the true nature of the lender’s operation, about what repayments were made and whether there were further threats or incidents post 2018 - were not insignificant. The Tribunal is not convinced either about the applicant’s explanations for why he made no mention of the loan shark problems and threats in his written application.
While the applicant has provided documentary evidence, the Tribunal’s concerns as to the threat letter are set out above, and the Tribunal is not convinced by the text message conversations which do not show the date or time and which the Tribunal considers could be easily fabricated with willing parties. The police report may well have been lodged at a police station as claimed, the information within it is unverified and the Tribunal has concerns that no other corroboration appears to have been given to the police, nor to the Tribunal. The Tribunal also does not consider a report lodged by the applicant’s sister to be independent corroboration of the incidents. The Tribunal acknowledges the difficulty that applicants face in providing corroborating evidence and that a lack of evidence does not necessarily negate an applicant’s claims. But in these circumstances, and noting the Tribunal’s other concerns, the Tribunal does find it telling that there is no independent evidence to corroborate his claims.
The Tribunal also has concerns that the applicant has not been trying to clear his debt. It is not implausible that a borrower could feel overwhelmed and deliberately disengage from their debts, particularly when they are physically removed from the location of their debts and lenders, but the Tribunal does not accept this is what has happened in the applicant’s particular circumstances. Rather, the Tribunal considers that his total inaction towards the loan shark debt is inconsistent with his claimed fear of harm in relation to the loan shark debt and is indicative of his not having such fear. The Tribunal also notes too, that while the applicant claims he is at a loss as to whether he should try to repay the lenders, he has not claimed and there is no evidence to suggest that he has taken any steps to locate or reach this lender, nor to set any money aside to make repayments should the lender get in contact. The Tribunal also considers that the lenders have had ample opportunity and means by which they could have found members of the applicants’ family and carried out their threats or enact any serious harm, or otherwise place pressure on the applicant or his family, and the fact that this has not occurred, is indicative of no one having such motivation.
Having considered the evidence overall, the Tribunal does not accept the applicant ever had this claimed outstanding debt to an unlicenced lender or loan shark and nor does the Tribunal accept he still owes any money now. The Tribunal does not accept that this loan shark or anyone has any intention of harming the applicant or any members of his family. The Tribunal does not accept he faces a real chance of any harm from the loan shark lenders or anyone on return on account of any loan.
The Tribunal finds that in relation to the claims about the loan, as the applicant does not face a real chance of any harm upon return to Indonesia now and in the reasonably foreseeable future, he does not meet s 5J(1)(b) and therefore does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for the complementary protection criterion, noting that the Tribunal’s finding above related to ‘any harm’ and that ‘real chance’ and ‘real risk’ involve the same standard,[2] the Tribunal finds there are not substantial grounds for believing that there is a real risk he would suffer significant harm inflicted by any act or omission by the loan shark or anyone else, as a necessary and foreseeable consequence of being removed to Indonesia. Accordingly, the Tribunal finds that the applicant does not meet s 36(2)(aa).
Findings relating to applicant’s financial concerns
[2] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal accepts the applicant is concerned about his financial future and finding a job that pays a suitable wage. He said although he has had a number of jobs in the past, his last project wasn’t completed and many people found out, so his reputation has been damaged.
The Tribunal acknowledged this, but it also discussed with the applicant the s 5J(1)(a) reasons and the concept of serious harm. It put to him that it didn’t seem he would face issues arising from a refugee reason, and that it seemed he would be able to find some kind of work and sustain himself, even if it is not of the pay scale he is looking for. The Tribunal also discussed with the applicant it would need to be satisfied he was facing a real risk of significant harm. The applicant commented that “yes, maybe” he would be able to find some kind of work, but he declined to comment further, or on any of the other matters.
The applicant has not raised any credible claims in this regard and while the Tribunal has considered DFAT’s most recent country information reports on Malaysia the information does not point to someone being denied work or opportunities to earn a living or access basic services on the basis of any reasons that would be connected with the applicant’s profiles and circumstances. Given this and based on the personal circumstances of the applicant as reflected above and in the discussions at hearing, the Tribunal finds that any hardship the applicant might experience on return arises from the economic conditions in Malaysia and usual competition for employment, not from any refugee reason mentioned in s.5J(1)(a) or from any systematic and discriminatory conduct or intentional acts or omissions to cause him harm.
The Tribunal finds that in relation to these matters, the applicant does not meet the criteria in s 5J(1)(a) of the Act. Nor does he meet the criteria in s 5J(4)(a) or (c) of the Act. He does not meet the criteria in s 36(2)(a) in relation to economic and financial hardship.
Further, for the purposes of the complementary protection assessment, the Tribunal finds that the applicant does face a real risk of facing the death penalty or being arbitrarily deprived of their lives or being tortured. Nor does he face a real risk of being subject to any intentional acts or omissions that would result in any of them suffering cruel or inhuman treatment or punishment or degrading treatment or punishment, in Malaysia.
Further, the Tribunal considers that the risk of economic or financial harm to the applicant would arise out of the state of the Malaysian economy and competition in employment, and these are things faced by the population of Malaysia generally, rather than by the applicant personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the applicant will suffer significant harm.
The Tribunal is not satisfied 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 of him suffering any harm that would amount to significant harm. Accordingly, the Tribunal finds that the applicant does not meet s 36(2)(aa) for reasons relating to economic or financial hardship.
Does the applicant satisfy the criterion in s 36(2)(b)(i) of the Act?
The applicant’s wife, ‘[Ms A]’ applied for a protection visa separately, in her own right, and her case was considered by the Tribunal in a separate review (AAT case 2301601). On 26 June 2024, the Tribunal remitted [Ms A]’s case to the Department with the direction that she is a refugee.
While the applicant submits that he also fears harm in relation to his wife [Ms A]’s circumstances and the Tribunal invited further information and submissions on this, he has not supported this assertion. Nor did [Ms A] provide evidence indicating he would be at particular risk. The Tribunal is not satisfied that the applicant satisfies s 36(2)(a) or s 36(2)(aa) on the basis of [Ms A]’s claims.
Nevertheless, the issue to be determined now is whether the applicant is a member of the same family unit as [Ms A], who is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion.
For the following reasons, the Tribunal has concluded that the applicant is a member of the same family unit as [Ms A], and therefore, the matter should be remitted for reconsideration.
There is credible evidence before the Tribunal that the applicant and [Ms A] are in a genuine and committed marriage and that he is [Ms A]’s spouse, as defined in s 5F of the Act.
The evidence includes information from the applicant and [Ms A] given in the applicant’s hearing, a post-hearing email and a post-hearing submission in relation to [Ms A]’s case. It also includes other various pieces of evidence submitted after the hearing including photographs of their engagement and dowry, photos from their wedding day and their rental home together, their certificate of Nikah and their marriage certificate as per the Marriage Act 1961 (Cth), their lease, rental receipts, phone and utilities bills, and evidence of shared bank accounts.
Based on the evidence before it, the Tribunal is satisfied that the applicants got married in 2020, that they have a mutual commitment to each other to the exclusion of all others, that their relationship is genuine and continuing. The Tribunal is satisfied that they live together and apart from a brief period of separation in 2023, they have done so since 2019.
The Tribunal accepts that the applicant is the spouse of [Ms A] as defined in s 5F of the Act, and accordingly finds that she is a member of the same family unit as [Ms A] for the purposes of reg 1.12(4)(a) and s 36(2)(b)(i) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a member of the same family unit as [Ms A] under s 36(2)(b)(i) of the Act.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis that he is a member of the same family unit as [Ms A].
General Member J McLeod
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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