1836252 (Refugee)

[2024] AATA 4183

1836252 (Refugee) [2024] AATA 4183 (29 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr John William Galloway (MARN: 9254439)

CASE NUMBER:  1836252

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Samira Kamandi

DATE:29 July 2024

PLACE OF DECISION:  Perth

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

Statement made on 29 July 2024 at 11:48am

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – religion – Christian – sought assistance to be able to remain and work in Australia – economic problems – Australian partner – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant was born in [year] in Sarawak in Malaysia and is a national of Malaysia.

2. The applicant was granted a UD-601 Electronic Travel Authority visa and arrived in Australia on [date] May 2018. She applied for a protection visa on 6 August 2018. On 26 November 2018, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

3. On 10 December 2018, the applicant applied for a review of the delegate’s decision.  This is a review of that delegate’s decision not to grant the applicant a protection visa by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

4. The applicant’s protection visa application indicates that she departed Malaysia due to ‘political and economic issues’ and that a friend suggested for her to go to Australia. She claims that while in Malaysia she applied for several jobs but failed to secure employment because of the political and economic issues in Malaysia. She claimed that if returned to Malaysia, she will have no job and will not be able to support herself or her family. The applicant’s protection visa application does not include details about her family, or her education or employment history in Malaysia. The applicant attached a copy of the bio-data page of her Malaysian passport to her protection visa application.

   The delegate’s decision

5. The applicant was not interviewed by the Department in relation to her claims. The delegate found that the economic climate in Malaysia affected everyone in the country and that the economic hardship that the applicant may suffer did not amount to serious or significant harm. The delegate refused the applicant’s protection visa application on 26 November 2018.

   Review application

6. The applicant lodged a review application with the Tribunal on 10 December 2018. The applicant provided the Tribunal with a copy of the delegate’s decision. She did not provide any additional information in support of her review application.

7. On 12 April 2024, the Tribunal emailed the applicant indicating that her review application was being prepared to be given to a Tribunal Member and that information was being sought to assist the Member in conducting the review. The email asked the applicant to complete a form which sought updated information regarding her contact details and claims for protection. The applicant responded providing her contact details. She did not include any further information in support of her claims for protection.

8. On 13 June 2024, the applicant was invited to a hearing scheduled on 19 July 2024. The applicant’s representative responded indicating that the applicant and her representative will be attending the scheduled hearing and that the Tribunal will be advised if any further information will be provided.

9. On 12 July 2024, the applicant’s representative emailed the Tribunal indicating that the applicant has advised that she has nothing further to add to her claims for protection and is relying on the information in her protection visa application.  The email indicates that the applicant fully understands that the claims made in relation to her application for protection have ‘little substance’ in relation to the relevant legislative provisions (ss 36(2)(a) and (aa) of the Act) and is aware that the Tribunal’s outcome may well be to affirm the delegate’s decision. Nonetheless, the applicant wishes to attend the hearing to give oral evidence about how she came to apply for a protection visa and for the matter to be properly finalised by the Tribunal, such that she can move on with her life.

10. Furthermore, the email advises that the applicant’s personal circumstances have changed substantially since she made an application for protection. She is in a long-term partner relationship with an Australian citizen and is considering her options in relation to applying for a partner visa, and that this will either be an onshore or an offshore application.

11. The applicant and her representative attended the scheduled hearing held on 19 July 2024. The hearing was held in person at the Tribunal’s Perth Registry. The applicant’s Australian partner also attended as a support person. The applicant gave evidence in English and was able to communicate effectively. She was able to respond to questions asked and sought clarification when unsure of what was being asked. I am satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process and was able to present her claims and evidence and respond to issues raised at the hearing. Where relevant, the applicant’s evidence given at the hearing is discussed below.

12. At the commencement of the hearing, I explained the purpose of the hearing and the criteria for the grant of a protection visa. I also explained that I was not bound by the findings of the delegate and that I would be assessing the evidence and information before me, including the applicant’s evidence given at the hearing, in determining her review application. I indicated that all aspects of the applicant’s claims were in issue before me and that she should not assume that anything that was accepted by the delegate will also be accepted by me. I further expressed that I would be discussing any concerns or issues that I may have with the applicant’s claims or evidence with her and that the purpose of this was to allow her to understand the issues and provide her responses and any further information that she wished for me to take into consideration. The applicant expressed her understanding of these matters and indicated that she had no questions in this regard.

    CRITERIA FOR A PROTECTION VISA

13. 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.

14. 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.

15. 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).

16. 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.

17. 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

18. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Malaysia for reasons of her race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.

20. For the following reasons, I have decided to affirm the decision under review.

    Country of reference

21. The applicant has consistently claimed to be a citizen of Malaysia and provided a certified copy of the biodata page of her Malaysian passport with her protection visa application. I accept that the applicant is a national of Malaysia, and that Malaysia is the receiving country for the purposes of this assessment.

    Analysis, findings and reasons

22. At the hearing the applicant confirmed that she was born in Sibu in Sarawak in Malaysia and that the information in her protection visa application that she is a Buddhist is not correct as she is a Christian. I accept the applicant’s evidence in this regard.

23. Given the lack of any information about her background in Malaysia, the applicant stated that she went to school in Sibu until she was about [age] years old. After obtaining her school certificate, she started working as a [occupation] in Kuching where she was residing with her parents. She later moved to Kuala Lumpur for work where she remained until shortly before coming to Australia. She stated that she worked in [an] industry for decades in Malaysia.

24. Regarding her family, the applicant stated that her father, who worked with [employer], passed way about 7 or 8 years ago after having suffered a heart attack. Her mother remains in Sibu and resides with her only sibling, a [sister], who [works]. She stated that her sister is divorcing her husband and has [children], and that the applicant provided financial support to her mother and sister from Australia.

25. The applicant explained that she was married in Malaysia and has [sons], one of whom passed away [recently]. She divorced her husband in 2013 because he had an affair, and that her adult sons all work and reside in Malaysia. She does not provide her ex-husband or her sons any financial support and is in regular contact with her sons.

26. Regarding the circumstances of travel to Australia, the applicant explained that she came to Australia for a holiday but because she was still distressed with her divorce in Malaysia and was finding it difficult to cope, she decided to remain in Australia and therefore needed to work to support herself.  She paid for her travel to Australia and started working after she lodged her protection visa application and was granted a bridging visa with work rights.

27. When asked about how she came to know about applying for a protection visa, the applicant said that other Malaysians told her that applying for a protection visa will allow her to work in Australia legally. She was introduced to an agent, who she later found out was not a registered migration agent and paid the agent AUD350 to prepare and lodge her protection visa application. She said that she did not tell the agent anything, was not informed about the information included in her protection visa application and was only give the page that required her signature, which she signed.

28. When asked if she was now aware of what is in her protection visa application, the applicant responded in the positive and confirmed that her current representative has explained to her that her claims do not satisfy the criteria for a protection visa. The applicant’s representative explained that the reason the protection visa application was not withdrawn was because the applicant and her partner were unsure of whether they were intending to lodge a partner visa onshore or offshore and that given the lack of information in her protection visa, they wanted information about her background and the circumstances that led to her application for  the protection visa to be put on the record. The applicant’s representative also said that he did not wish to advise the applicant that she has claims for protection when she has not.

29. The applicant provided the above information in a credible manner during the hearing, and I have no reason to doubt the credibility of her evidence regarding her background and circumstances in Malaysia, the reason for her travel to Australia, and the circumstances that led to the lodgement of her protection visa application. I accept her evidence in this regard and that she sought assistance to be able to remain and work in Australia and this led to her application for a protection visa.            

30. At the hearing, when asked about what she feared would happen to her if she returned to Malaysia, the applicant referred to her age as a barrier to finding employment. She indicated that in Malaysia women over the age of 35 find it difficult to find employment. When referred to her sister’s employment, the applicant said that her sister is employed because she already has a job and that it would be difficult for her to obtain employment.

31. Given the nature of her evidence at the hearing, I referred the applicant to the information in in the 2024 DFAT report[1] which indicates that the World Bank has classified Malaysia as an upper-middle-income economy; the country’s strong economic performance over the last few decades has led to a significant reduction in poverty; data from April 2023 indicates that Malaysia’s unemployment rate is around 3.4 per cent; and that there are labour shortages in many sectors. I explained that this information indicates that Malaysia’s unemployment rate is relatively low, there are no official policies that discriminate against women over 35 years of age, and given her evidence at the hearing, it did not appear to me that she would face economic hardship or be denied the capacity to earn a livelihood of any kind such that her capacity to subsist will be threatened. I also explained that it does not appear to me that she would face any challenges or issues, if returned to Malaysia, that would amount to serious or significant harm on this basis. The applicant agreed that there are no official laws that would prevent her to access the employment market because of her age or otherwise. She also expressed agreement with my observation that age may be a factor in obtaining employment anywhere, including in Australia, and that these challenges do not amount to serious or significant harm.

    [1] DFAT, ‘DFAT Country Information Report – Malaysia’, 24 June 2024.

32. At the hearing, while the applicant indicated that she did volunteer to work as [an occupation] to the daughter of a [politician] a long time ago and that she was also a member of the SDPD, which may have stood for Sarawak Development Party, she was no longer a member of any political parties and did not face any issues nor attracted any  attention from the authorities or any other person because of her assistance to the [politician]’s daughter or membership of the political party. She confirmed that she did not come to the attention of the Malaysian authorities for any reason while residing in Malaysia, was never charged with any offence nor arrested for any reason.

33. At the conclusion of the hearing, the applicant confirmed that there is no one in Malaysia that she fears would harm her if she returned to Malaysia, that apart from wanting to reside, work, and remain with her Australian partner, she has no other reason for not wanting to return to Malaysia, that she does not fear harm on the basis of s 5J(1) of the Act nor does she fear that she will be subjected to significant harm if returned to Malaysia.    

34. Considering the applicant’s evidence at the hearing and her circumstances as a whole, I am not satisfied that the applicant faces a real chance of serious harm or at a real risk of significant harm for reasons of her limited activities assisting a [politician]’s daughter some years ago, her past membership of the SDPD, or any challenges that she may face in securing employment in Malaysia because of her age or otherwise. 

35. I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.

36. The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet s 36(2)(a).

37. For the same reasons set out above, I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she would suffer significant harm for any reason. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

38. The applicant has not claimed and there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.

    DECISION

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

    Samira Kamandi
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …