1901651 (Refugee) [2024] AATA 4464 (4 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1901651
COUNTRY OF REFERENCE: Malaysia
MEMBER:Sophia Ziebell-Barnes
DATE:4 October 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 October 2024 at 11:34am
CATCHWORDS REFUGEE – protection visa – Malaysia – original claims of fear of harm from rival gang – suspected of involvement in gang fight in which person killed – form completed by agent and claims not correct – pre-hearing claims of fear of harm from loan shark – borrowed while unemployed for house, car and children’s education – working in Australia to support family, including children’s education in another country – regular payments to loan shark with no recent threats – undetailed claims and evidence, and no documentation – ethnicity and religion – Indian Christian – no fear of harm but proceeded with hearing – country information – some discrimination or harm not to level of serious or significant – decision under review affirmed
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
BACKGROUND
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Country of nationality
2. The applicant, who claims to be a citizen of Malaysia, arrived in Australia [in] June 2018 on a UD-601 Electronic Travel Authority using an apparently genuine Malaysian passport, a copy of which is contained in the Departmental file. He has at all times stated that he is a citizen of Malaysia, and his application was assessed by the Department on that basis.
3. The Tribunal accepts on the evidence before it that the applicant is a Malaysian citizen and his claims have been assessed against Malaysia as the country of nationality and the receiving country.
4. There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.
Protection visa application
5. The applicant applied for the visa on 12 August 2018. In summary, the applicant claimed that:
a) He was suspected of being…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an appeal by an applicant against a decision of the Tribunal to affirm the refusal of a protection visa. The applicant, a Catholic Indian Malay male, initially claimed fear of harm from a rival gang due to suspected involvement in a fatal gang fight. However, at the hearing, the applicant stated that his original claims were incorrect, having been completed by an agent without his full understanding. He asserted he was not a refugee and sought a visa allowing him to work and travel to Malaysia, rather than a protection visa. The Tribunal clarified it could only consider the protection visa application, and the applicant elected to proceed.
The legal issues before the Tribunal were whether the applicant faced a real chance of persecution in Malaysia for one of the five prescribed reasons under s 5J(1)(a) of the Migration Act 1958, or, alternatively, whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal to Malaysia, he faced a real risk of suffering significant harm under s 36(2)(aa) of the Act. The Tribunal was required to consider the applicant's personal circumstances, including his background, employment, family support, and travel history, in conjunction with country information relevant to Malaysia.
The Tribunal affirmed the decision not to grant the protection visa. It found that the applicant's claims of fear of harm from a loan shark, to whom he made regular payments without recent threats, were undetailed and unsupported by documentation. While acknowledging some discrimination or harm in Malaysia, the Tribunal concluded it did not reach the level of persecution or significant harm as defined by the Act. The applicant's ethnicity and religion as an Indian Christian were considered, but the country information did not indicate a risk of persecution or significant harm to him on these grounds. The Tribunal also noted the applicant's own assertion that he was not a refugee and did not wish to claim refugee status.
Consequently, the Tribunal determined that the applicant did not satisfy the criteria for a protection visa under s 36(2) of the Migration Act 1958. The decision under review was affirmed, meaning the protection visa was refused.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons that follow, the Tribunal has determined that the decision under review should be affirmed. The applicant’s personal background The applicant is a [Age]-year-old Catholic Indian Malay male. The applicant stated at hearing that he was born in Pinang, Malaysia. The applicant’s passport also refers to the applicant having been born in Pulau Pinang, Malaysia and this is accepted by the Tribunal as the applicant’s birthplace. The applicant is the middle of three children with an older brother who lives in [Country 2] and a younger sister living in Malaysia. The applicant communicates with his siblings every few months. The applicant’s father is [Age] years of age and his mother is [Age], both of whom live in Kulim, Kedah. Prior to their retirement, the applicant’s father worked as [an occupation 2] and his mother as [an occupation 3]. The applicant financially supports his parents sending them approximately RM300 per month and he communicates with them on a weekly basis. The applicant completed secondary school in [Year] and obtained a diploma in [subject 1] from [Institute 2]. The applicant worked initially as [an occupation 4], as [an occupation 5] at [Employer] from 2012 to 2017 and as [an occupation 6] from 2017 to 2018. The applicant married his wife in [Year] and the couple has three children. His son, aged [Age], lives with him in Melbourne and is studying [subject 2]. His daughter, aged [Age], is studying [subject 3] in [Country 1] and his youngest son, aged [Age], is studying [subject 2] in [Country 1]. The applicant’s wife remains living in Malaysia. She has worked consistently throughout their relationship, but recently resigned from her role as [an occupation 7] as she found her boss to be too controlling. The applicant gave evidence that he travelled to the following countries for holidays prior to arriving in Australia in 2018:a)[Country 2] - approximately every two years from [Year] to 2017. b)[Country 3] - [Year] and 2016.c)[Country 4] – 2013 / 2014. d)Australia – 2015.e)[Country 5] – 2017.f)[Countries 6-9] - 2017. The applicant also travelled for work to [Country 10] in 2003 and [Country 11] in 2010 – 2012. Upon arrival in Australia, the applicant worked on a [workplace 1] in [Town], NSW a [workplace 2] in [City], NSW and a [company] in [Suburb 1], Victoria. Since 2019 he has been employed full time as [an occupation 1] with [Employer] in [Suburb 2]. The Tribunal accepts the above matters to be true.Protection claims The applicant stated at hearing that the claims made in his protection visa application (application) were not correct and that an agent had completed the form for him. The applicant said that he did not understand what a protection visa was when the agent applied and he did not actually want a visa where he was unable to return to Malaysia to visit his family. The applicant stated at hearing that he is not a refugee and did not want a protection visa, but rather wanted a visa allowing him to work in Australia and travel to and from Malaysia. The Tribunal explained that it could not consider any other visa application other than the applicant’s protection visa application and that it was a matter for the applicant as to whether the hearing proceeded. The applicant ultimately decided to proceed with the hearing.
Evidence
Evidence Before The Court
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 The issues in this review are whether there is a real chance that, if he returns to Malaysia, the applicant 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) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act. For the reasons that follow, the Tribunal has determined that the decision under review should be affirmed. The applicant’s personal background The applicant is a [Age]-year-old Catholic Indian Malay male. The applicant stated at hearing that he was born in Pinang, Malaysia. The applicant’s passport also refers to the applicant having been born in Pulau Pinang, Malaysia and this is accepted by the Tribunal as the applicant’s birthplace. The applicant is the middle of three children with an older brother who lives in [Country 2] and a younger sister living in Malaysia. The applicant communicates with his siblings every few months. The applicant’s father is [Age] years of age and his mother is [Age], both of whom live in Kulim, Kedah. Prior to their retirement, the applicant’s father worked as [an occupation 2] and his mother as [an occupation 3]. The applicant financially supports his parents sending them approximately RM300 per month and he communicates with them on a weekly basis. The applicant completed secondary school in [Year] and obtained a diploma in [subject 1] from [Institute 2]. The applicant worked initially as [an occupation 4], as [an occupation 5] at [Employer] from 2012 to 2017 and as [an occupation 6] from 2017 to 2018. The applicant married his wife in [Year] and the couple has three children. His son, aged [Age], lives with him in Melbourne and is studying [subject 2]. His daughter, aged [Age], is studying [subject 3] in [Country 1] and his youngest son, aged [Age], is studying [subject 2] in [Country 1]. The applicant’s wife remains living in Malaysia. She has worked consistently throughout their relationship, but recently resigned from her role as [an occupation 7] as she found her boss to be too controlling. The applicant gave evidence that he travelled to the following countries for holidays prior to arriving in Australia in 2018:a)[Country 2] - approximately every two years from [Year] to 2017. b)[Country 3] - [Year] and 2016.c)[Country 4] – 2013 / 2014. d)Australia – 2015.e)[Country 5] – 2017.f)[Countries 6-9] - 2017.
Decision
Reasons for decision
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Sophia Ziebell-BarnesMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s 36(2)(a), 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 The issues in this review are whether there is a real chance that, if he returns to Malaysia, the applicant 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) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act. For the reasons that follow, the Tribunal has determined that the decision under review should be affirmed. The applicant’s personal background The applicant is a [Age]-year-old Catholic Indian Malay male. The applicant stated at hearing that he was born in Pinang, Malaysia. The applicant’s passport also refers to the applicant having been born in Pulau Pinang, Malaysia and this is accepted by the Tribunal as the applicant’s birthplace. The applicant is the middle of three children with an older brother who lives in [Country 2] and a younger sister living in Malaysia. The applicant communicates with his siblings every few months. The applicant’s father is [Age] years of age and his mother is [Age], both of whom live in Kulim, Kedah. Prior to their retirement, the applicant’s father worked as [an occupation 2] and his mother as [an occupation 3]. The applicant financially supports his parents sending them approximately RM300 per month and he communicates with them on a weekly basis. The applicant completed secondary school in [Year] and obtained a diploma in [subject 1] from [Institute 2]. The applicant worked initially as [an occupation 4], as [an occupation 5] at [Employer] from 2012 to 2017 and as [an occupation 6] from 2017 to 2018.
