1901765 (Refugee)

1901765 (Refugee) [2024] AATA 4215 (5 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1901765

COUNTRY OF REFERENCE: Malaysia
MEMBER:Patricia Tyson
DATE:5 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 August 2024 at 1:55pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – race – Indian Malaysian – economic conditions – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 TO THE REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 30 August 2018. The delegate refused to grant the visa on the basis that there was not a real chance of the applicant suffering harm amounting to persecution, nor a real risk of him suffering significant harm on account of his claimed homosexuality.
CLAIMS AND EVIDENCE
In his protection visa application, the applicant made claims to fear harm on account of his sexual orientation. His claims can be summarised as follows:
·The applicant claims he left Malaysia because he was born gay. He has been chased out by his family several times because his family cannot accept the fact that he is gay.
·He will be harmed because his family has given him a warning to come out of being gay. They said if he continues being gay, they will harm him as he is a disgrace to them.
·The applicant has been physically and mentally harmed by his family for being gay.
·Police reports were made and no action was taken as it was his family causing harm.
·The applicant tried moving to Ipoh, Perak and problems were caused by his family members.
·If he returns his family will harm him for leaving the country and being gay.
·Authorities will not protect him because Malaysia us a Muslim country and being gay is against the country and religion.
The applicant was not invited to an interview with the Department of Home Affairs.
Evidence to the Tribunal
The applicant appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
At the hearing, the applicant expanded on the claims in the visa application, and made further claims relating to the economic and security situation in Malaysia. His evidence at the hearing is discussed in further detail below.
The applicant was sent an invitation to the hearing in May 2024. In early July 2024, the applicant contacted the Tribunal to request a postponement of his hearing because he was temporarily working in Melbourne, could not get a day off to arrange a place to stay for the hearing date, and could not attend a hearing in Melbourne as he did not have his documents with him. He stated that if the date were postponed he could arrange a place to stay and prepare the documents needed for the hearing. The Tribunal emailed the applicant on 3 July 2024 to request that he provide further information about when he had travelled to Melbourne and when he expected to return to Sydney. The applicant did not reply to this correspondence, but attended the hearing on 18 July as scheduled. He stated that he had been in Melbourne for four or five weeks because there was [occupation 1] work available there but not in Sydney. He said he had had travelled to Sydney from Melbourne with a friend. He confirmed at the hearing that he had been able to access the documents he needed through his email.
The applicant was allowed a week following the hearing to provide additional evidence, particularly relating to a claimed recent relationship. The applicant had stated at the hearing that he had replaced his phone and would need to get any evidence of his past relationship from his old phone. The Tribunal had enquired why he could not access things like WhatsApp chats through the applicant on his new phone. He referred to needing to back up though his email but that phone being unable to check email.
On 26 July 2024 the applicant sent an email to the Tribunal stating that he needed more time. On 31 July 2024 the Tribunal advised it would agree not to make a decision before 2 August 2024. The applicant replied to that email stating that he needed two or three more days. The applicant has now had two weeks following the hearing to provide material. His evidence was that this was already existing material that he needed to obtain from an old phone or through his email. He has provided no explanation as to why he needs further time to do this.
I also take into account that the applicant’s protection visa review has been pending since 2019. He was sent a letter acknowledging the application indicating that if he wished to provide material for the Tribunal to consider he should do so as soon as possible. A pre hearing information form sent to the applicant in February 2024 also requested that if he wanted to submit further evidence to the Tribunal he provide it as soon as he could. The invitation to hearing sent to the applicant in May 2024 also advised him to provide all documents he intended to rely on prior to the hearing. The applicant has had ample opportunity to collect and provide evidence to support his claims. In all the circumstances, I have decided to proceed to a decision without allowing the applicant further time to provide supporting material.
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. The criteria for a protection visa, and related definitions, are set out 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.
FINDINGS AND REASONS
The issues in this case are whether the applicant’s claims to be gay are credible, and whether there is a real chance of the applicant being persecuted in the reasonably foreseeable future in Malaysia, or a real risk of him suffering significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background, identity and nationality
At the hearing, the applicant provided the original of his Malaysian passport. He gave evidence in the Tamil language which is spoken by Indian ethnicity Malaysians, and referred naturally to locations and institutions in Malaysia throughout his evidence. I have no concerns as to his identity and accept this as claimed. I find the applicant to be a national of Malaysia and that Malaysia is the relevant receiving country for the purpose of this assessment.
On the applicant’s evidence at the hearing and in the visa application, he grew up in Kuala Lumpur and Selangor. His parents have separated. His mother currently lives in Kuala Lumpur and is [an occupation 2] in [Public Agency 1]. His father lives in Penang and is [an occupation 3] in [Public Agency 1]. He has [specified family members]. He says he has infrequent contact with his parents. He last spoke to his father three weeks ago to request him to fulfil a religious obligation for the applicant, and spoke to his mother two or three months ago. He is not in contact with his siblings. In Malaysia, the applicant completed high school and later worked as a helper [in industry 1], and in a convenience store.
The applicant arrived in Australia in June 2018. He has lived in Sydney and also Melbourne. He does casual work as a [occupation 1] in a restaurant depending on availability.
Claims based on sexual orientation
The applicant’s central claim is that he is gay and has been rejected by his family. He claims that gay men in Malaysia are looked down on, degraded and do not have a secure life.
In summary, the applicant gave evidence at the hearing that he realised he was gay when he was around [age range]. His family discovered his sexual orientation after an incident in which the applicant touched a male relative in the shower. He was assaulted and his family kicked him out. He would go clubbing and meet other men. He had a relationship with a person in Malaysia named ‘J’ who he met while clubbing. They were together for around one or two years, up until two or three years before the applicant left Malaysia. The relationship ended because J began to see a doctor and change gender. In Australia, the applicant has had encounters with men he met while clubbing and at gay venues. He lived with a partner named ‘N’ for six or seven months.
For the reasons set out below, I have serious concerns over the credibility of the applicant’s claims to be gay.
There were significant inconsistencies in the applicant’s evidence about how his family discovered he was gay. He described an incident in which he got into the shower with a male relative and began touching him. The relative began shouting and calling everyone, and the family came in and asked why he was doing that, realised he was gay, beat and assaulted him and chased him away from home. He said that he was [age range] at the time, and that after this he had gone to stay with a friend named ‘V’. He said he had left the family home at that time and had no or little contact with his family between then and when he left Malaysia. He said that at this time his family were living in a particular residence that he referred to as ‘mansion’.
Aspects of this account differ from the applicant’s responses to questions at the beginning of the hearing to questions about his residential history. The applicant would have been [age range] in around 2012 or 2013. On the applicant’s evidence earlier in the hearing, he lived much of his life in a ‘mansion’ with his family in [Town 1]. He then moved with his family to a house in an area of Kuala Lumpur called [Town 2] when he was around [age range]. He said he was there for around 18 months. After this, he went to stay with friends, first with V in [Town 1] for around six to seven months, and then with another friend named ‘P’ in a location he could not remember, before travelling to Australia in 2018 when he would have been around [age].
On his own evidence the applicant did not really recall the time periods in which the events in Malaysia, including his house moves, took place. While I draw no adverse inference from any differences in dates, there is a significant inconsistency between the applicant’s initial evidence that the last place he lived with his family was a house in [Town 2], and his later claim that the family were living in the mansion in [Town 1] when the shower incident occurred and he was outcast from the home. This is not a minor inconsistency in dates or timeframes, it goes to whether the applicant is recalling the location of an event he genuinely experienced.
When this inconsistency was put to the applicant, he claimed that his family had separated and so at the time his mother was living in [Town 1] and his father was in [Town 2], and he stayed for a while with each. While I take into consideration that the applicant had mentioned earlier in the hearing that his parents have separated, I do not accept his explanation for the inconsistency. His new claim that at the time he was in [Town 2] his parents were separated and he was living between the locations is undermined by his clear and unequivocal earlier evidence that he had lived with his family in a house in [Town 2] after living with them at the mansion in [Town 1].
At the end of the hearing, the applicant sought to give a further explanation for the inconsistency about whether he was living in [Town 2] or [Town 1] at the time he left the family home. He stated that he had not mentioned in his visa application that his family were separated but had just included information about himself. I pointed out that the inconsistency arose from his evidence at the hearing, not the visa application. He then said that his address was the mansion address (ie in [Town 1]) but the address on his Malaysian identity card was the [Town 2] address. This does not explain the inconsistency and in any event is inconsistent with his earlier evidence that he had written the [Town 1] address on the visa application because it was the address on his identity card. He also claimed that after the problem with his family he went away, then came back, then went to stay with V. This is inconsistent with his earlier evidence. When I raised this further inconsistency, the applicant suggested there may have been issues with the interpretation.
Earlier in the hearing, the applicant clearly stated that he lived with family in a house in [Town 2] after living with them in a mansion in [Town 1]. I had specifically asked the applicant who he meant by family with reference to who he lived with in [Town 2], and he had said his mother and father. At no point did he state that he had lived between the two locations, or that his parents were already separated at that time. His clear evidence was that when he was cast out of the family home he went to live with V, and had little contact with his family after that time. While I take into account that at times there seemed some confusion between the applicant and interpreter, these particular parts of the evidence were clear and I do not accept that the inconsistency arises from an interpretation issue. I do not accept that this is an error that could be explained by a faulty memory or the passage of time. The discovery of the applicant’s sexual orientation because of the shower incident, and his being made to leave the family home is a significant event and I do not accept the applicant would mistake or forget where he was living at the time or where he had last lived with his family, if this event had occurred and the applicant had been cast out of home as he claims.
The applicant also gave inconsistent evidence about whether he had sought assistance from police after the assault from his family. At the hearing, I asked if he had sought help from police or authorities at the time his family assaulted him and he said no, because it was a family issue and because his family were in the police and would lose respect if he complained. This directly contrasts a written claim in the visa application that police reports were made but no action was taken as the harm was from his family. When I raised this inconsistency, the applicant stated that he had told the friend who helped him prepare the visa application his true story, but did not know what that person had written. I find it difficult to accept that the applicant did not know what was in the visa application, given on his evidence he reads and writes English. His claims about having told this friend his true story is also inconsistent with evidence he gave during the hearing that he has not told any of his friends in Australia that he is gay. When I put this to him, he changed his evidence and said he had shared only with this person because he had wanted to tell his true story for the visa application. I do not accept the applicant’s explanation for the inconsistency about whether or not he approached police.
A further significant inconsistency arose in the applicant’s evidence about his past relationships. At the start of the hearing, I asked the applicant if he was in a relationship and he said no. I asked if he had a relationship in Malaysia, and he said no. This is inconsistent with evidence he later gave to have had a relationship with J in Malaysia. When I raised the inconsistency, the applicant claimed he had thought I was asking about relationships with women. Considering he was at a Tribunal hearing to give evidence in relation to the claims that he had made in his protection visa application to be a gay man, I do not accept the applicant would have assumed this question was referring only to relationships with women.
Other aspects of the applicant’s evidence about his claimed relationship with N in Australia were also highly problematic. I asked the applicant if he had had relationships in Australia he said he had a relationship but it was just for fun. There was some confusion in the evidence and possibly the interpretation about how long the relationship went for. I initially asked when the relationship was and the response was ‘perhaps six or seven months’. The interpreter stated she had asked how long he had the relationship. I sought clarification that the applicant was in a relationship for six or seven months, and he said that he could not say it was a relationship, they were just having fun, hanging together, communicating with each other. He repeated it was just for fun. I asked how long he was having this ‘fun’ situation and he said it was not like that, he could not say a timeframe. He said it was hard to explain, that maybe it was only something that gay people could know. One person could go leave and have a sexual relationship with another and the other could not say anything. I understood from the applicant’s evidence that it was casual rather than a committed or monogamous relationship.
The applicant said he had met this person in a club. He said this was six or seven months ago. I clarified it was six or seven months ago, which would mean that it was this year, and he confirmed that. The applicant could not remember when he last had communication with this person. He described that he met him at a particular venue [at a specified location], which he said is not a gay club, but has a mixed clientele including gay men. When I asked the person’s name, he said ‘N’ but that he did not come to know his full name. I asked what else he could tell me about N, and he said he could not say anything about him, they were introduced to each other as gays, they were just having fun and he did not find more interaction with him. I asked how many times he saw N, and he said if he was busy he would not communicate, other than that they would connect on WhatsApp or something.
I then asked how many times the applicant saw N in person, and at this point there was a significant shift in his evidence. He claimed that within two weeks of meeting N, he had moved into N’s house in [Suburb 1] and they had lived there together for six or seven months. He could not remember the address, because he would take the train. I asked if there were other people living there too, and he said it was a studio apartment. He was not sure what kind of work N did. The applicant did not pay rent or bills. I put to him that if they had lived together for six to seven months, and he met N six to seven months ago, that would mean it had ended only very recently. He said yes, that they had fun and it finished.

The applicant’s evidence that he lived with N for six or seven months is completely at odds with his earlier description of that relationship. It is also inconsistent with evidence he gave earlier in the hearing that before going to Melbourne four or five weeks earlier, he had lived in [Suburb 2] for about two years, with friends. When I raised the inconsistency, the applicant claimed he had been answering my questions and I had not asked whether he had lived with N. He said I had earlier asked for his addresses. He said he had just answered the questions I asked and did not want to say additional information. I do not accept these explanations. The applicant initially seemed at pains to explain that his interaction with N was only fun and casual. His evidence was that he knew very little about N, not even his full name, that they would connect on WhatsApp when he was not busy. Regardless of whether or not the relationship was monogamous or serious, I do not accept he would have described his situation with N in this way and omitted to mention they were living together, if he had in fact been living with N for six or seven months.
When asked about evidence of this relationship with N, the applicant said it was difficult to get evidence of every incident. He questioned how he could have evidence of being naked with someone and suggested this kind of evidence could be produced but would not show they were gay. I clarified that I did not mean evidence of their physical relationship, but that if they had lived together they might have things like photographs together or messages, anything with the [Suburb 1] address, or any other evidence he had been living together with this man in [Suburb 1]. The applicant stated that his phone screen had broken and he had a new phone, he did not bring the old one but if he was able to get it there was a chance. I asked if things like WhatsApp messages would be on the application on his new phone, and he referred to needing to back it up through his email but being unable to do so. He suggested that if he had known he needed evidence he would have had his photograph taken with another man. I reiterated that I was not referring to evidence of intimate acts. Despite being allowed additional time to do so, the applicant has not provided any further material.
In addition to my concerns over the credibility of the applicant’s evidence about his past experiences, I found his evidence about his own realisation of his sexual orientation superficial and vague. Asked about when he had realised he was gay, the applicant said that he had been interested in and in love with girls, but they were not attracted to him. They would insult him. He realised all these things, that he did not want to have relationships with girls, and changed himself to gay. I asked if he was attracted to men and he said he was. He first realised this when he was maybe [higher age range]. I asked how he came to realise that and he said he did not know how to say that. He was attracted to men when he went clubbing. I asked when he started to think of himself as gay and he said he could not say, but after a certain age he wanted to be with male friends and have relationships with men. He said he started going clubbing. Later, after the applicant described the shower incident, I questioned the applicant about his earlier attraction to men, for example while he was at school. The applicant again referred to girls making fun of him. I explained I was asking about what he felt inside and he said at that time he was not having any feelings as such. I later put to the applicant that his evidence seemed superficial and undetailed and I was not able to get any real understanding of his own feelings. I asked if there was anything else he would like to tell me about that and he said he did not have to say anything more about feelings, that it was individual. He referred to being unable to explain being gay and when a gay is with a gay then he knows what his feelings are.
In considering the applicant’s evidence, I take into account that the applicant was discussing deeply personal matters that in many cultures may be accompanied by feelings of shame. I note the applicant’s own evidence that he found it hard to explain his feelings and that these were matters he previously could not tell others about. The applicant said that gay sexual relationships are different and he does not know how to explain them to a female. The applicant also said that he was uncomfortable discussing these matters in front of women and did not want to disrespect the interpreter or member. I asked if the applicant would prefer a male interpreter, and he said no, whoever it was he would not know how to say it. I also assured him that I was experienced in hearing claims of this nature, that his evidence would not shock or offend me. I reiterated to the applicant a number of times that I was not asking him to talk about physical/intimate aspects of relationships. Even taking into account that the applicant may have nonetheless had difficulty describing personal matters and feelings, his evidence lacked any sort of detail or nuance that would suggest he was recounting a genuine lived experience of realising he was gay.
I note that during the hearing I asked the applicant about information from a [social media] account that he confirmed was his. This was that he was ‘friends’ with his mother on [social media], and that his account indicated he was in a relationship. The applicant explained that he no longer uses or updates that account, but confirmed he had friended his mother. He said he had said on there he was in a relationship to avoid pressure over marriage, but it was not true. I accept this evidence and draw no adverse inference from the information on the [social media] account. I do not however accept that he wants to avoid pressure over marriage because he is gay.
When considering the applicant’s evidence, I take into account that at times the interpreter indicated she was having difficulty following the applicant’s evidence. There were other times when the applicant indicated the interpretation did not convey what he had intended. On these occasions the applicant would repeat the evidence in Tamil or on occasion explain to me in very comprehensible English. I also asked follow up questions to ensure that I had correctly understood the evidence. There were other occasions where the applicant answered questions, again in very comprehensible English, without waiting for any interpretation. I am comfortable there were no unresolved, significant errors in interpretation materially impacting the applicant’s evidence.
I am mindful that some of the events the applicant was describing took many years ago. I also take into account that the applicant was discussing deeply personal matters and that on his own admission he found difficulty expressing feelings, and particularly to a female interpreter and Tribunal member. I note that when offered a male interpreter the applicant suggested he would still experience difficulty. He did not make any request for a male Tribunal member.
However, even taking all of these things into consideration, I found the applicant’s evidence about his realisation of his sexual orientation and of related events and his claimed past relationships to lack credibility. I do not accept that the applicant is gay, that he has ever engaged in any same-sex sexual activity or relationships, or that he would be perceived to be gay for any reason. I do not accept that he was harmed or outcast by his family. I find there is no real chance of the applicant being harmed in the reasonably foreseeable future in relation to any of these claims.
Other claims
Towards the beginning of the hearing when I asked the applicant the reasons he did not want to return to Malaysia, he referred to his sexuality, and said that he does not have anyone in Malaysia as he is separated from his family. The claims about separation from his family are linked to the claims about his sexuality which I have rejected.
During the hearing I asked the applicant about whether he had experienced any harm in Malaysia on account of his Indian ethnicity. He said he would not say that, but that he had not felt safe. When I asked further about this, he said ‘everyone knows what is happening to Indians in Malaysia’ and referred to there being less security in Malaysia and crimes. He gave an example of women having jewellery taken from them on the road. He did not suggest that he personally had experienced any such incidents. He said it was something that happens randomly but there is no freedom or independence.
As I raised with the applicant, the criteria for the visa requires a real chance of serious harm or, alternatively, a real risk of significant harm. For the purpose of the refugee criterion and s 5J, s 5J(5) provides that the following are instances of serious harm: (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. These ‘instances’ are not exhaustive, but are illustrative of what might amount to serious harm.
I discussed with the applicant information about the situation for Indian Malaysians. According to DFAT, Indian Malaysians constitute around six percent of the population. Many are relatively poor. There are benefits given to Malays that Indian Malaysians are excluded from. Indian Malaysians also reportedly suffer discrimination in obtaining rental accommodation and in entrance to higher education. There is underrepresentation of Indian Malaysians in the civil service, and even more so in the police and military. Very few occupy senior positions; however, there are exceptions – as in the case of the applicant’s parents. There can be language barriers to employment in the civil service, or in the Chinese-dominated corporate sector. DFAT further reports that a disproportionate number of Indian Malaysians are in prison. Overall, 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] When I raised with the applicant that this information may suggest there was not a real chance or risk of harm that might amount to serious or significant harm, he referred to a lack of security and foreigners getting jobs over Malaysian citizens.
[1] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report Malaysia’, 24 June 2024.
I also discussed with the applicant information about the economic and employment situation in Malaysia which would suggest there was not a real chance or risk of him suffering serious or significant harm in relation to inability to get a job. According to DFAT, in April 2023 Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are in fact labour shortages in many sectors.[2] The poverty rate is relatively low other than in some rural areas.[3] Malaysian authorities have been focused on reducing income inequality.[4] In response the applicant said that in his country there is no peace.
[2] DFAT, ‘Country Information Report Malaysia’, 24 June 2024.
[3] DFAT, 'Country Information Report Malaysia', 29 June 2021.
[4] DFAT, ‘Country Information Report Malaysia’, 24 June 2024; DFAT, 'Country Information Report Malaysia', 29 June 2021.
While the applicant referred to crime, he did not indicate this was something which had impacted him in the past or particularise any specific fear of being targeted for crime in the future. I find the chance of the applicant being seriously harmed in a criminal act is no more than remote.
The applicant did not identify any harm he has faced in the past on account of his ethnicity. The applicant has not expressed any intention to apply for a job in the civil service, but I note that on his evidence he speaks Malay (said to be one of the potential barriers to entry) and that his parents have had long careers in [Public Agency 1]. He has not expressed any intention to enter university. I am not satisfied on the information or his own past experiences that there is a real chance of him being unable to find adequate work, whether on account of his ethnicity, because of preference for migrants or for any other reason. Considering the applicant’s claims and circumstances as a whole, I am not satisfied there is a real chance of him suffering a level of discrimination or other harm that would amount to serious harm in the reasonably foreseeable future whether individually or cumulatively.
Taking the claims as a whole, I find that the applicant does not have well-founded fear of persecution within the meaning of s 5J. The applicant is not a refugee within the meaning of s 5H(1).
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).
Alternative criteria for the visa
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). That criterion requires that there are 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 the applicant will suffer significant harm. The Federal Court has held that ‘real risk’ imposes the same standard as the ‘real chance’ test in the refugee criterion.[5]
[5] MIAC v SZQRB (2013) 210 FCR 505.
‘Significant harm’ for the purpose of the complementary protection criterion in s 36(2)(aa) is exhaustively defined by s 36(2A) to include arbitrary deprivation of life, the death penalty being carried out, or being subjected to torture, cruel or inhuman treatment or punishment or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. Treatment that would meet these definitions involves an act or omission that intentionally inflicts ‘severe’ physical or mental pain or suffering, an act or omission that could reasonably be regarded as cruel or inhuman in nature that intentionally inflicts pain or suffering, or an act or omission that intentionally causes extreme humiliation which is unreasonable.
As I have not accepted the applicant’s claims regarding his sexuality, I find there is no real risk of harm in that regard.
With regard to the applicant’s claims about crime, as I have said above, he has not claimed to experience harm of this nature in the past nor identified any specific fear of being targeted for crime in the future. I find the risk of the applicant being significantly harmed in a criminal act is no more than remote.
Considering the country information set out above, and the applicant’s own circumstances, I am not satisfied there is a real risk of him suffering discrimination or other treatment to a level that would, individually or cumulatively, that would meet the threshold of pain, suffering or humiliation described in the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, or that would otherwise amount to significant harm as defined.
Taking the claims as a whole, I am not satisfied that 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 the applicant will suffer significant harm. 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.
Patricia Tyson
Member

ATTACHMENT - 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. The criteria for a protection visa, and related definitions, are set out in the extract below.
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 below.
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 below.
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 4215

5 August 2024

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