1901651 (Refugee)

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
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 involved in a gang fight which resulted in a person being killed.
b)    Members of a rival gang were looking for him to seek revenge.
c)    He believes he will be harmed if he returns to Malaysia.
d)    He does not believe that the Malaysian authorities can protect him.

6. The delegate did not interview the applicant, but ultimately refused the application for a protection visa, not being satisfied that the applicant was a refugee as defined in s 5H(1) of the Act and therefore that the applicant was not a person in respect of whom Australia had protection obligations.
7. The delegate also considered the applicant’s claims under the complementary protection criteria but was not satisfied that as a necessary and foreseeable consequence of being returned to Malaysia there was a real risk that the applicant would suffer significant harm and accordingly found that the applicant was not a person in respect of whom Australia had complementary protection obligations under s 36(2)(aa) of the Act.
Application for review and material received pre-hearing
8. On 24 January 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
9. On 14 February 2024, the applicant lodged a ‘pre-hearing information’ form with the Tribunal, wherein the applicant stated:
Firstly, I would like to take this opportunity to thank the tribunal for giving me a chance to put across my genuine reasons why I should be allowed to stay in Australia indefinitely & I am truly grateful.
The reason for my arrival and the decision to stay under a protection visa is not something that I intended or felt proud of however under the circumstances, I was left with no other choice.
I clearly understand I breached my tourist visa condition however I have only been a good citizen of Australia to this date.
I am employed full-time as [an occupation 1] by a local company close to 6 years & paying taxes as a resident. I have never once been in any unlawful situation or got into trouble with the law.
I am a family man and father to 3 children ([ages]) all are full-time students. Both my wife and I work to support the family and look after both our elderly parents.
Both my family and I are currently under enormous financial pressure, at the moment my family relies on me for financial support. I was jobless in Malaysia for more than a year and financially stuck and owe loan shark high amount of money that I took to pay my housing loan/car loan & children’s education and etc. Daily I go through threat from the loan sharks that’s the main reason I came to Australia to work and settle all the debts and support my family especially my kids’ education.
Returning to my home country is only going to make our life unbearable especially where the minority is not fairly treated particularly if you are a Christian / different ethnic background to Malays (Muslim). This is why I had to send two of my children overseas ([Country 1]) to further their education as they weren't given a fair go. My children will only complete their studies in 2028. If you send me back now my kids can’t continue their education. Yearly I need to pay [Currency]25k for their fees & accommodation.
I would appreciate your consideration in this matter especially for my kids and I consider myself a valuable member of the Australian society & I called Australia my home for the last 6 years. You can check with my company boss about my work & behaviour. Infect my boss checking with immi to get a work visa for me. Hope tribunal will consider me to get a legal work visa for me to continue work here.
I prefer to stay in Australia and become a PR or citizen in this country. I love this country and my job too. Hope you will consider my case let me stay here at least until my kids complete their education. I miss my family too much but I got no choice. Last year they planned to visit me but their visa was rejected because of my case.
Please help me on this case.
I can bring all my children’s educational receipt and evidence that their studying at Europe for the hearing.

The Tribunal hearing

The applicant appeared before the Tribunal on 19 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
At hearing the applicant provided the following documents to the Tribunal:
a)Handwritten ledger of loan repayments to [Loan shark] for 2018 – 2024.
b)Correspondence from [Bank] to the applicant re Performing Rescheduling & Repayment Arrangement, 28 November 2019.
c)Correspondence from [Bank] to the applicant re Extension of Validity Period of Letter of Offer, 23 January 2017.
d)[Student Village 1], [Country 1] invoice, 8 August 2023.
e)[Student Village 2], [Country 1]invoice, 20 May 2022.
f)Correspondence from [University] to [A] re Full Offer Letter, 13 June 2024.
g)Statement of Fee Account, [University] to [A], 13 June 2024.
h)Receipt of Payment, Academic Year 2023/2024, [A].
i)Fred Hollows Foundation, Tax Receipt 2022/2023.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). 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.
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.
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.
Essentially, the applicant’s claim for protection as articulated at hearing falls under the following broad categories, each of which will be addressed below:
a)Indian Malay
b)Loan shark
c)Financial responsibilities / unemployment
d)Religion
Indian / Malay
When asked at hearing if he feared being harmed because of his Indian race if he were returned to Malaysia, the applicant stated that does not fear being harmed and he has not been threatened with being harmed in the past. However, he stated that Indian Malays do not receive all of the same benefits that others in Malaysia receive. He said that this extends to education and Indian Malays cannot study all of the available courses, but rather are told what they can study. The applicant further claimed that Islamic Malays are able to obtain bank accounts at special rates compared with other racial groups.
The applicant said that Indian Malays do not have access to the same employment opportunities as there are quotas for Indian and Chinese people. The applicant also claimed that Indian Malays do not have access to the same sporting opportunities at a school and national level. The applicant stated ‘This is the main reason why we want our kids to study abroad’.
At hearing, excerpts of a report prepared by the Department of Foreign Affairs called Country Information Report Malaysia[1] (the DFAT report) were discussed with the applicant which provides that Indian Malays are the third largest ethnic group in Malaysia comprising approximately six percent of the population. Indian Malaysians tend to be underrepresented in the civil service, and even more so in the police and military. Very few occupy senior positions; however, there are exceptions, and there are several Indian Cabinet ministers. The DFAT report further provides that Indian Malaysians often struggle to access state-based tertiary education. In-country sources reported clear discrimination for university entry in favour of Malays, to the detriment of Indian Malaysian students. In-country sources reported that some students with ‘Flat A’ marks (a perfect GPA of 4.0) were awarded their sixth or seventh preferred course, while Malay students with lower marks received their first choices. DFAT assesses that Indian Malaysians face moderate levels of official discrimination, including when attempting to gain entry into the state tertiary system or civil service.
[1] 24 June 2024
The Tribunal accepts the above country information to be true.
Based on the country information, the Tribunal also accepts that:
a)The applicant does not subjectively fear being harmed or threatened with harm based upon his racial profile should he return to Malaysia.
b)Indian Malaysians do not receive the same benefits that others in Malaysia receive including equal access to tertiary education and employment opportunities.
Although the DFAT report does not address Indian Malay access to sporting opportunities, better banking rates or employment quotas, the Tribunal accepts for present purposes that this is true. The Tribunal also accepts that the applicant prefers that his children study abroad in part to avoid such discrimination in Malaysia.
However, as discussed with the applicant at hearing, not all discrimination or harm will rise to the level of serious harm for the refugee assessment or significant harm for the complementary protection assessment. In this regard, the Tribunal notes that serious harm is defined in s 5J(5) of the Act as including:
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.
Although the above definition is not exhaustive, given the significance of the harm described therein the Tribunal does not find the difficulties experienced by or feared by the applicant rises to the requisite level of serious harm. Accordingly, the Tribunal does not accept that the applicant has a well-founded fear of persecution if returned to Malaysia for any reason.
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), I have considered whether 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 he will suffer significant harm.
‘Significant harm’ is exhaustively defined in s 36(2A) as follows:
(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.

As discussed with the applicant at hearing, Australian courts have held that complementary protection obligations are concerned with intentional acts or omissions by third persons[2].
[2] GLD18 v MHA [2020] FCAFC 2
There is no evidence before the Tribunal to suggest that any harm the applicant might suffer as a necessary and foreseeable consequence of being returned to Malaysia would arise from the intentional or deliberate acts or omissions of a third person such as could constitute arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is it suggested that the death penalty would be carried out upon the applicant.
For these reasons, the Tribunal does not accept that any harm to which the applicant may be subjected if returned to Malaysia would meet the definition of ‘significant harm’, as exhaustively defined in s 36(2A).
Loan shark
The applicant stated at hearing that in January 2018 he borrowed RM250,000 from a loan shark by the name of [Loan shark]. The money was borrowed to pay for a full renovation on his recently purchased house and to purchase new furnishings for his house. The applicant stated there was no loan contract and the loan agreement was only verbal.
The interest payable on the loan is twenty percent, however the loan shark has agreed that given the consistent payments made by the applicant, he does not need to continue paying interest on the loan and he need only now clear the remaining balance of RM77,500. The loan shark attends the family home in Malaysia each month and his wife pays the loan shark the monthly instalment. The applicant stated that his payments have varied between RM1,500 and RM3,000 per month over the years as he pays more money off the loan when he is able to.
Before he left to come to Australia, the applicant was told by the loan shark that if he did not pay the loan the loan shark would harm his family, beat him, damage the house, or otherwise give him trouble. The applicant stated that he has three years remaining on the loan. Providing he repays the debt, the applicant stated that nothing will happen.
The Tribunal enquired as to what the situation would be for the applicant if he returned to Malaysia and got a job. The applicant stated that he has significant expenses and he could not afford to support all of his children’s international studies, pay his mortgage, support his parents and wife, pay his bills, and repay the loan shark.
At hearing, further relevant excerpts the DFAT report were discussed with the applicant which provides that those who do not repay loans from a loan shark face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles, and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after loan has been paid off.
The DFAT report further provides that state protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims. DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.
The Tribunal accepts the above country information to be true.
The Tribunal also accepts that the applicant has significant expenses and if he were returned to Malaysia, could not afford to support all of his children’s international studies, pay his mortgage and bills and support his wife and parents.
When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants, including issues related to anxiety in a hearing. There may also be memory issues resulting from the lapse of time, and cultural issues and sensitivities which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[3]
[3] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[4]
[4] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
In the present case, the applicant has not provided sufficient detail or evidence to establish the relevant facts of the case in support of his claim. The Tribunal does not find that anxiety, memory difficulties from the lapse of time or cultural sensitivities account for the lack of detail and specificity in the applicant’s claim and evidence.
The Tribunal finds the applicant’s description of the loan from the loan shark and his interactions with them to be unusual and implausible insofar as the loan shark would lend such a large sum of money, equivalent to approximately six and half years of the average annual Malaysian wage at the time[5], based only on an oral agreement. It also strikes the Tribunal as being highly irregular and implausible that a loan shark would agree to waive interest payments on a loan. The Tribunal notes that the only evidence provided by the applicant of the claimed loan or repayments made to the loan shark were the handwritten notes described above at [11](a). The Tribunal notes the applicant’s evidence that he provides money to his wife in Malaysia who then makes cash payments to the loan shark, however no evidence of bank transfers or payments to his wife were provided to the Tribunal. Accordingly, the Tribunal does not accept that the applicant took a RM250,000 loan from a loan shark in 2018 to renovate his house, buy furnishings or pay for other expenses.
[5] Malaysia Wages (tradingeconomics.com)
Given the Tribunal’s findings, it follows that the Tribunal does not accept that:
a)the interest payable on the loan is twenty percent, but the loan shark has agreed to waive the interest charges and the applicant now need only repay the outstanding balance of RM77,500 which is expected to be repaid in three years.
b)the applicant repays between RM1,500 and RM3,000 per month which the loan shark collects from the applicant’s wife each month.
c)the loan shark told the applicant that if he did not repay the loan, they would harm his family, beat him, damage the house, or otherwise give him trouble.
d)the applicant has not missed a payment to date.
Therefore, the Tribunal does not accept that the applicant faces a real chance of persecution from loan sharks or for any other reason. Accordingly, the Tribunal finds that the applicant does not face a well-founded fear of persecution.
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has 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 he will suffer significant harm.
For the reasons set out above, the Tribunal has not accepted there to be a real chance the applicant would face harm if he were returned to Malaysia. In MIAC v SZQRB[6], the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. For the same reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia now or in the reasonably foreseeable future for any reason. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa).
Financial responsibilities / unemployment
[6] MIAC v SZQRB [2013] FCAFC 33) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
As noted above, the applicant stated at hearing that he has significant financial expenses pertaining to the financial support of his three children, two of whom live and study in [Country 1] and one who studies and lives with the applicant in Melbourne, the financial support of his wife and parents and his home loan[7]. The applicant provided the Tribunal with financial statements pertaining to his home loan and his children’s tertiary studies in [Country 1]. The applicant stated that there is approximately RM757,000 outstanding on his mortgage. In his pre-hearing information form, the applicant stated that the educational expenses for his children studying in [Country 1] amounts to approximately [Currency]25,000 per annum which equates to approximately AUD$40,158[8] or RM116,257.[9] The Tribunal accepts the above to be true.
[7] The Tribunal does not accept that the applicant also owes money to a loan shark.
[8] 25,000 [Currency] to AUD - [Currency] to Australian Dollars Exchange Rate (xe.com)
[9] 25,000 [Currency] to MYR - [Currency] to Malaysian Ringgits Exchange Rate (xe.com)
The applicant stated at hearing that in the event he is returned to Malaysia, he would not be able to earn sufficient money to pay for all of his expenses. The applicant also stated at hearing that he is ‘not sure’ if he will be able to get a job in Malaysia. The applicant also said ‘Our plan is going very well, if I couldn’t get a job it would create too much financial change and affect everything.’
The Tribunal enquired as to whether the applicant could possibly sell his home in Malaysia. The applicant stated that it would be very hard for him to sell the house as it is a very good, big family home with a room for each of his children and he does not want to lose his house.
The Tribunal discussed excerpts of the DFAT report pertaining to employment rates with the applicant which provided that in April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium, and large enterprises are highly reliant on migrant labour. The Tribunal accepts this information to be true.
Given the county information indicates a low unemployment rate in Malaysia combined with the applicant’s professional training and experience and apparent good health at hearing, the Tribunal does not find it is logical or reasonable that the applicant will be unable to find employment in the event that he is returned to Malaysia. Accordingly, the Tribunal does not accept that the applicant will not be able to obtain a job in Malaysia. It follows that the Tribunal does not accept that if the applicant had to return to Malaysia that he will face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future in relation to unemployment, or for any other reason.
The Tribunal acknowledges that the applicant enjoys being able to financially provide for and support his family, including his children in their overseas studies. The Tribunal also acknowledges that it is the applicant’s preference to remain in Australia to work, achieve his financial and family goals and to maintain ownership of his current family home in Malaysia. The Tribunal accepts that being returned to Malaysia would create a degree of disappointment, and financial and lifestyle change for the applicant and his family. However, as raised by the Tribunal at hearing, the Tribunal finds the claim as to the applicant’s considerable financial obligations does not constitute harm to the applicant for one of the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion. Therefore, the claim does not meet the criteria set out in s.5J(1)(a) of the Act.
There is no evidence before the Tribunal to suggest that the feared harm the applicant might suffer as a necessary and foreseeable consequence of his being returned to Malaysia would arise from the intentional or deliberate acts or omissions of a third person such as could constitute arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is it suggested that the death penalty would be carried out upon the applicant. Accordingly, the Tribunal does not accept that the feared harm to which the applicant may be subjected if returned to Malaysia would meet the definition of ‘significant harm’, as defined in s.36(2A).
Catholic
The applicant stated that he is a practicing Catholic. The Tribunal enquired as to how he practices his religion and the applicant responded that he attends church weekly at his local church and that he would attend his local church weekly in the event that he is returned to Malaysia. The applicant stated that he has never been threatened or harmed because of his religion. The applicant further stated that he does not have any fear or concerns in returning to Malaysia because of his Catholicism.
The Tribunal accepts the above to be true.
As discussed with the applicant at hearing, the DFAT report provides that Christians accounted for close to 10 per cent of the total population in 2010, the last year for which official data is available, and are predominantly located in Sabah and Sarawak. While Christian politicians are present in most political parties, they tend not to represent specifically Christian interests. DFAT assesses that Christians are generally not at risk of societal discrimination. Christians who proselytise or promote Christianity to Muslims face a moderate risk of harassment by state authorities, potentially including violence or abduction.
The Tribunal accepts the above country information to be true.
There is no evidence before the Tribunal to suggest that the applicant has ever previously or intends to proselytise or promote Christianity to Muslims or any other group of people. From his oral evidence, the applicant’s Catholicism appears to be a relatively private practice including attendance at a weekly Mass in his local church. Given this, the Tribunal does not accept that if the applicant was returned to Malaysia that he will face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable in relation to his Catholicism, or for any other reason.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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-Barnes
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.
…

[2024] AATA 4464

4 October 2024

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