1902986 (Refugee)

1902986 (Refugee) [2024] AATA 3018 (22 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1902986
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Rebecca Lee
DATE:22 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 April 2024 at 6:42pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – Islam – race – Malay – homosexual – had not been harmed in Malaysia – abandoned LGBTI claim – fear of violence – a period of over 5 years has passed since the applicant separated – not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old who claims to be a citizen of Malaysia.
The applicant first arrived in Australia on [date] June 2018 as the holder of a subclass UD-601 Electronic Travel Authority visa and has not departed since.[1]
[1] Movement record PRA – 21 December 2023. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision. No disrespect is intended.
On 30 August 2018, the applicant applied for a subclass XA-866 Permanent Protection Visa (protection visa).
On 5 February 2019, the delegate made their decision.
The applicant provided the Tribunal with a copy of the delegate’s decision.
The delegate refused to grant the visa on the basis that the applicant is not a person:
(a)in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Act, given the delegate:
a.was not satisfied that there was a real chance that if the applicant returned to Malaysia, they would be persecuted for one or more of the reasons mentioned in s5J(1)(a) of the Act. The delegate accepted that the applicant may suffer discrimination and harassment from the authorities and society to some degree as a lesbian, but found that this treatment does not reach the threshold to constitute persecution; and
b.found that the applicant could obtain protection from Malaysian authorities such that there would not be a real risk they would suffer significant harm as a necessary and foreseeable consequence of returning to Malaysia; and
(b)is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act).
The applicant appeared before the Tribunal on 9 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Before the Department
According to information contained in their protection visa application, the applicant is a [age]-year-old Malaysian citizen who was born in Kuala Terengganu, Terengganu, Malaysia. Further, the applicant:
·belongs to the Malay ethnic group;
·is of the Islamic faith;
·has never been married;
·is not in contact with relatives outside of Australia;
·provided no details of family or life partners;
·had no personal contacts in Australia;
·previously lived in Marang, Terengganu from October 1995 to June 2018;
·can speak, read, and write in both Malay and English languages;
·was born to Malaysian citizens;
·had not undertaken any overseas travel in the last 30 years;
·in 2016, completed a course in [a field] [in] Malaysia;
·had never been employed but received family support;
·confirmed they were making their own claims for protection;
·did not receive the assistance, including from an interpreter, in making the application.
In relation to their claims for protection, the applicant claimed they left Malaysia because they are homosexual.
The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application.
The Department did not invite the applicant to attend an interview.
Before the Tribunal
The review application
On 10 February 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
Pre-hearing submissions and evidence
On 28 November 2023, the Tribunal sent a pre-hearing information form to the applicant which contained various questions for the applicant to complete.
On 4 December 2023, the applicant provided the Tribunal with a copy of the completed pre-hearing information form, in which the applicant maintained their claim to be homosexual.
The applicant also claimed that in November 2018, they were almost killed by someone who choked their neck with a knife at hand, but luckily two police officers came and saved them. The applicant is now traumatised and depressed. The applicant felt safe and happy in Australia because the Australian Government looked after them.
On 20 December 2023, the Tribunal sent the applicant an invitation to attend a hearing.
On 21 December 2023, the applicant sent an email to the Tribunal with a response to the hearing invitation which stated that the applicant intended to rely on documents at the hearing (although the type of documents were not outlined) and requested the Tribunal to take evidence from a friend who had asked someone to help from Australia using [social media] messenger to make a police report that the applicant had nearly been killed.
No further documents were received (other than the passport at the commencement of the hearing).
The hearing: supporting documents and oral evidence
At the start of the hearing, the applicant confirmed that all the documents which had been sent to the Tribunal as part of the review process constituted all the necessary documents before the Tribunal.
During the hearing, the applicant gave the following oral evidence.
-Protection visa application
The applicant said they paid a person they did not know to prepare their protection visa application, being a friend of a friend, because they had been advised that to apply for such a visa allowed them to work legally in Australia. This woman had asked the applicant to trust her, which the applicant did because she did not read anything submitted.
Since making the protection visa application, the applicant has considered their options, but did not wish to cancel this application as they understood they would be required to return to Malaysia, and they wished to stay in Australia. Their current employer may consider sponsoring the applicant for a work visa, after applying to sponsor about 10 people ahead of the applicant.
-LGBTI claim
The applicant said they were not gay.
The Tribunal read out a summary of the protection visa application as follows:
a.the applicant … left Malaysia because they are homosexual. They had been disowned by their Muslim family and told by them to leave Malaysia…the community has caused trouble for the applicant and their family;
The applicant said this was incorrect.
b.The applicant said that they had not been harmed in Malaysia.
The applicant said this was correct.
c.The applicant claimed that if they returned to Malaysia, their family and the government would bring them down. In Malaysia, the law of the government is cruel and corrupt because in every part of Malaysia, there is a religious department and police. The applicant claimed they would receive punishment by laws which include flogging and summonses. Everybody would persecute them.
The applicant said this was part of the claim they were gay and was incorrect. They were not making this claim anymore.
d.The applicant claimed they will be harmed or mistreated if they returned to Malaysia because people fight them when they are outside and threatened and verbally abused them. The applicant said they did not report this to the police because of the laws and the fact that the police would hurt them and ask them for protection money.
The applicant said this was part of the claim they were gay and was incorrect.
The Tribunal also referred to the completed pre-hearing information form which the applicant provided to the Tribunal on 4 December 2023. The applicant said that they prepared it. The Tribunal read out part of the typed form, which in summary read that:
a.the applicant sought a protection visa because it is their choice to be a homosexual. Their Muslim family disowned them. The Malaysian government and religions regard lesbianism as an offence and a sin. The Malaysian community acts like the applicant causes trouble for them and always cursed with their identity as a lesbian. The applicant claimed that sometimes they got beaten up because the community hated seeing them around. Their family will not accept them as a family member anymore and asked them to get out of the home and told them to leave Malaysia if they still wanted to be homosexual; and
b.the Australian Government looked after them and had always protected them as a homosexual. Australia has laws which protect LGBTI people and treat them the same as others. The applicant said they deserved to live happily and love themselves.
The applicant said that this part of the form was not accurate, and they are not gay, and when asked why this had been included in the pre-hearing information form, the applicant said a friend had told them to copy the protection visa application, but now that there was an in-person hearing, the applicant said they had decided to speak the truth. The applicant said: ‘let me be honest’.
-Fear of violence claim
The applicant is from Terengganu, Malaysia, from close to the border with Thailand. They come from an Islamic family, and they are the second born of four daughters. The applicant obtained a [qualification]. After obtaining the [qualification], they moved back to Terengganu, staying with their parents for a few months and then renting a place by themselves. The applicant worked part-time for a year [in] Kuala Terengganu.
In 2017, the applicant travelled with a friend to [a country] for two weeks for a holiday.
Between January and June 2018, the applicant lived in [Country 1] to earn better money. They worked in a [factory], but it was not a good job, with a rude and racist boss. Whilst in [Country 1], they found a [social media] post saying they could travel to Australia, work more hours, and make more money than in [Country 1]. The applicant travelled from [Country 1] to Melbourne, Australia, and was collected from the airport by the Malaysian person who had made the [social media] post.
The applicant had not met this person before arriving in Australia and said that now they do not remember his name, as he has too many aliases, but they called him ‘[Mr A]’. In this decision, the Tribunal will also refer to him as [Mr A]. [Mr A] was from Kuala Lumpur, Malaysia. A day after the applicant arrived, the two of them drove to South Australia, where the applicant had their own room in a house where the two of them stayed with a lot of other people. They all worked on a vineyard. During this time, the applicant gave [Mr A] their passport for the purposes of the protection visa application, and he did not give it back. This was before the applicant had their bridging visa, allowing them to work.
After three months, the applicant and [Mr A] travelled to Melbourne for a better life. [Mr A] found them accommodation in Melbourne renting rooms from people. The applicant was an [occupation], using a motorcycle for a month, before they had an accident. The applicant said they were not in a relationship with [Mr A], but as soon as the applicant had arrived in Australia, [Mr A] had been saying they were his girlfriend and acted as if he did not wish for others to befriend her. The applicant said after the accident they wished to get away from [Mr A], because he was controlling, and they were in Australia for money not for [Mr A]. When the applicant wanted to look for another job themselves, [Mr A] tried to stop the applicant and the pair got into a fight.
On 29 November 2018, a friend of the applicant in Malaysia arranged for a third person to make a police report because [Mr A] had the applicant’s passport and would not let the applicant leave. The applicant said it was a good job the police attended that night, because [Mr A] at one point had them in a chokehold whilst they were lying down and had a knife in his hand. The applicant thought they were going to die. The police removed the applicant from the situation and returned their passport to them. The third person was nice and took the applicant away from the house. The applicant said at that point they were finished with [Mr A].
The applicant subsequently heard from the police one more time, when they checked in with the applicant and whether [Mr A] was still chasing the applicant. The applicant told them they were alright and safe for now.
The third person took the applicant to country Victoria, where they worked on a farm for a month. Then the applicant started working on [other] farms. They moved to Western Australia two years ago, initially with a casual job but since last year working full-time in a [role] with a [company].
The applicant fears returning to Malaysia because of [Mr A]. They have not seen or talked with [Mr A] since the 29 November 2018 incident, but the applicant did not have him blocked on [social media] as they had had him blocked on other social media accounts. In the month or so prior to the hearing, the applicant discovered with surprise that [Mr A] had viewed the applicant’s [social media] profile, which the applicant has not used for five years. She fears that [Mr A] is still physically looking for her and wants them to suffer, because two years ago when the applicant spoke with their friend, the friend reported that when attending a wedding in Melbourne, [Mr A] was there and had asked after the applicant making a general, not threatening, inquiry, asking where was the applicant, what was the applicant doing, was the applicant with anyone and was the applicant still alive. The applicant’s friend told [Mr A] she did not know, but someone has told him that the applicant is in Western Australia. The applicant has heard from their South Australian colleagues that [Mr A] has married and has a child with his wife.
The applicant wishes to report [Mr A] to the police, and says she has a copy of his passport. If they both return to Malaysia, then he might tell the applicant’s family about what happened in Australia, and he might do something to the applicant. The applicant feels safer in Australia because of the Australian police.
When asked if [Mr A] would have any reason to know where the applicant was, if the applicant returned to Malaysia, the applicant said somebody would tell him if [Mr A] asked. [Mr A] told friends to issue a threat to the applicant, that if the applicant goes back to Malaysia, [Mr A] will come for the applicant or their family, and that the applicant ‘will be finished’. The applicant says they do not understand why [Mr A] would be looking for the applicant, as he is married to someone else. The threat is based on the applicant returning to Malaysia, because [Mr A] cannot do anything to the applicant in Australia because there are too many rules, and it is policed here. Further, the chances are low of the applicant being harmed by [Mr A] in Western Australia because the applicant works FIFO. In Malaysia, the applicant said [Mr A] may find the applicant because someone may know where the applicant is because of social media and tell him.
-Health claim
The applicant is not being medically treated for depression, they just feel occasionally they cannot sleep when they think about the incident, and they prefer to manage their health themselves. They also feel nervous and shake when they recall the incident. The applicant has a fear about their mental health if they returned to Malaysia.
Country information
-Police
According to the Department of Foreign Affairs and Trade Country Information Report on Malaysia (29 June 2021), local and international sources consider the Royal Malaysian Police to be a professional and effective police force.
The applicant said sometimes they are and sometimes they are not and said there was a lot of corruption.
The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal, or demotion.[2] Whilst there is public perception of corruption, the Malaysian authorities are doing something about it.
[2] DFAT Country Information Report Malaysia (29 June 2021) at [5.6].
When the Tribunal expressed its concern that if the applicant returned to Malaysia, they would be protected like the Australian police have protected them here, the applicant asked if they could stay for one more year because they needed to pay a debt and then they could return to Malaysia. The applicant borrowed money $50,000 from two or three Malaysian friends in Australia, who were not a loan sharks, and sent it to Malaysia to pay Malaysian hospital bills for their mother. They have repaid $10,000 and wish to repay the whole debt.
-Health
Malaysia has a well-established universal health care system, accessed by around 78 per cent of the population, and modelled on the United Kingdom’s system. Malaysia’s two-tiered health system consists of nation-wide public health care centres and hospitals administered by the Ministry of Health, and a growing private health sector, which predominantly offers services in urban areas. Primary healthcare treatment or a first line treatment via public healthcare would incur a fee ranging from MYR1 – MYR5 (approx. AUD0.30 to AUD 1.6) per visit, and a visit to a private GP would cost MYR30-MYR125 (AUD 9.50-AUD40). Health care is generally accessible to all residents in urban areas in peninsular Malaysia, with health facilities generally available within five kilometres of residence. However, health services in Sabah and Sarawak are less well provisioned, and many residents of these states are required to travel long distances to access basic health care services. Most health facilities in Sabah and Sarawak are located near the coastline, and sources report significant overcrowding at district hospitals.[3]
[3] DFAT, "DFAT Country Information Report: Malaysia", 29 June 2021, 20210629092134, 2.22.

The Ministry of Health’s 2018 National Health and Morbidity Survey found that just under one in three Malaysians aged 16 years and above were living with a mental health issue, but public mental health services remain limited. Due to a lack of mental health professionals, public services are generally provided by general practitioners and non-mental health specialists. Private mental health services can cost upwards of MYR300 (AUD95) per consultation. Because most private health insurance does not cover mental health services in Malaysia (as of July 2019, Malaysia AIA became the only such company to provide coverage), access can be cost prohibitive. There is also significant stigma attached to mental health issues in Malaysia. The word gila (crazy), or the term ‘gila monster’ is often used in society to describe people with a mental illness. A belief in supernatural spirituality can also compound mental health issues, and misdiagnosis of mental health issues reportedly occurs due to widespread reliance on spiritual healers and exorcisms. While spiritual healers are particularly common in Sabah and Sarawak, especially in rural areas where health services are lacking, middle class, well-educated Malaysians will also often choose spiritual remedies. It was reported that half the respondents of a survey conducted by a Malaysian thinktank experienced mental health issues, typically anxiety, during the various COVID-19 Movement Control Orders.[4]
[4] DFAT, "DFAT Country Information Report: Malaysia", 29 June 2021, 20210629092134, 2.26.
A list of affordable counselling and therapy services that can be easily accessed in person or online in Malaysia is available at Affordable Mental Health Therapy Services in Malaysia - Homage Malaysia. From their website:
Mental illness has been a taboo subject in Malaysian society, partly due to generational differences and a lack of sufficient awareness. Many of the older ones may consider it as a sign of weakness, without having an understanding of mental illness. It may also appear strange to the parents that their children are suffering, especially if there is a sufficiency in providing for food, clothing, education and more. Others may not be able to empathise with experiences of panic attacks or suicidal ideation.
In addition, it remains at large that the stigma surrounding mental health is not only present in Malaysia, but throughout the world…However, it should be clearly stated that there is no shame to experience these conditions and seek help.
In response to a summary of the above, the applicant asked if there was any chance for the applicant to stay in Australia, and if the Tribunal did not find in their favour, what were their options. The Tribunal advised it could not advise the applicant in that regard.
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
Identity
The applicant travelled to Australia on a Malaysian passport and claims to be a Malaysian citizen. The delegate had no concerns about their claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a citizen of Malaysia and has assessed their protection claim accordingly.
Issue
The issue in this case is whether the Tribunal is satisfied that there is a real chance of serious harm, or a real risk of significant harm, if the applicant returns to Malaysia, because of a Malaysian man who previously assaulted the applicant in Australia and resultant health issues.
The claim that the applicant is a lesbian was not pursued by the applicant at the hearing. No claim was made about a debt owed to friends in Australia. These are addressed in more detail below.
Need to specify all particulars
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).
REFUGEE GROUNDS
LGBTI claim
In the protection visa application, lodged in August 2018, and the completed pre-hearing information form, lodged in December 2023, the applicant sought protection on the basis that they are a member of the LGBTI community, in that they are a lesbian.
At the hearing, the applicant expressly said that they are not gay, and were not claiming on the basis that they were a lesbian. The applicant said they had decided to speak the truth at the hearing.
The Tribunal finds that the applicant is not a member of the LGBT community, and is not gay/ lesbian and that the claims to this effect in the protection visa application and the prehearing information form are not genuine, because it accepts that the applicant was being honest at the hearing about their sexual orientation, about the incorrect statements made in those two documents, about the fact that they did not read the protection visa application before it was submitted by a third party and about the fact that the applicant had followed a friend’s advice to copy the claim in the protection visa application into the pre-hearing information form, but appeared to regret it during the hearing and decided to be honest instead.
The Tribunal is therefore not satisfied that there is a real chance that the applicant will be harmed in the reasonably foreseeable future if they returned to Malaysia because of their sexual orientation, based on the finding that the applicant’s claim as to their sexual orientation is not genuine and the applicant is not a member of the LGBTI community.
Fear of violence claim
In the completed pre-hearing information form, the applicant referred to an assault by a male they referred to at the hearing as [Mr A], claiming that in November 2018 they were almost killed by [Mr A] who choked their neck with a knife at hand, with the incident leaving the applicant traumatised and depressed. The Australian police had rescued the applicant, and so the applicant felt safe and happy in Australia because the authorities had looked after them.
At the hearing, the applicant said that the basis of their claim for a protection visa was their fear of [Mr A], and that [Mr A] is still physically looking for the applicant and wants them to suffer. Towards the end of the haring, in response to the Tribunal asking if [Mr A] would have any reason to know where the applicant was, if the applicant returned to Malaysia, the applicant said somebody would tell [Mr A] if he asked and that [Mr A] told friends to issue a threat to the applicant, that if the applicant goes back to Malaysia, [Mr A] will come for the applicant or their family, and that the applicant ‘will be finished’.
Based on what the applicant said during the hearing, the Tribunal accepts that the applicant met [Mr A] when he collected the applicant from the airport when the applicant first arrived in Australia [date] June 2018; [Mr A] is from Malaysia; the applicant travelled with [Mr A] to South Australia and then back to Melbourne; the applicant lived in the same accommodation, and occasionally the same bedroom, as [Mr A]; [Mr A] told people they were a couple when they were not; [Mr A] had the applicant’s passport; [Mr A] was controlling; and when the applicant wanted to look for another job themselves, [Mr A] tried to stop the applicant and the pair got into a fight.
Further, and again based on what the applicant said during the hearing, the Tribunal accepts [Mr A] would not let the applicant leave, and that at one point [Mr A] had the applicant in a chokehold whilst they were lying down and had a knife in his hand such that the applicant thought they were going to die. Further, the Tribunal accepts a friend of the applicant in Malaysia arranged for a third person to make a police report and in November 2018 the police in Australia removed the applicant from the situation and returned their passport to them.
Based on what the applicant said during the hearing, the Tribunal finds that the applicant has not seen or talked with [Mr A] since that incident in November 2018; the applicant was alright and safe and told the Australian police that when the police subsequently followed-up with the applicant; two years ago [Mr A] made a general, but not threatening, inquiry after the applicant when seeing a mutual friend at a wedding in Melbourne, asking where the applicant was, what was the applicant doing, was the applicant with anyone and was the applicant still alive; [Mr A] is now married with a child of his own; and [Mr A] had viewed the applicant’s [social media] profile, which the applicant has not used for five years, but is otherwise blocked from the applicant’s social media accounts.
The applicant towards the end of the hearing said [Mr A]’s friends had issued a threat at his request, that if the applicant goes back to Malaysia, [Mr A] will come for the applicant or their family, and that the applicant ‘will be finished’. The applicant said the threat was based on the applicant returning to Malaysia, because [Mr A] cannot do anything to the applicant in Australia because there are too many rules, and it is policed here. Further, the chances are low of the applicant being harmed by [Mr A] in Western Australia, even though the applicant said [Mr A] knows they are in this State, because the applicant works FIFO. In Malaysia, the applicant said [Mr A] may find the applicant because someone may know where the applicant is because of social media and tell him.
The Tribunal does not accept that this threat has been made or that [Mr A] will come for the applicant or their family if the applicant returns to Malaysia, because a period of over 5 years has passed since the applicant separated themselves from [Mr A], [Mr A] did not make this threat two years ago when he made a general enquiry after the applicant at a wedding, the fact that [Mr A] has since the November 2018 incident looked at the applicant’s [social media] profile is not in itself a threat or threatening and the applicant only raised this alleged threat towards the end of the hearing, with little supporting detail.
The Tribunal is therefore not satisfied that there is a real chance that the applicant will be harmed by [Mr A] now or in the reasonably foreseeable future if they returned to Malaysia, based on the fact that the applicant has no ongoing relationship with [Mr A], on the finding that the applicant was alright and safe when the police followed-up with the applicant, and on the finding that no threat has been made by [Mr A] or his friends to harm the applicant if they return to Malaysia.
Health claims
In the protection visa application, no health claims were raised. In the completed pre-hearing information form, the applicant said they had big trauma and depression after the November 2018 incident, in amongst details of the applicant’s claim of being gay.
Based on what the applicant said at the hearing, the Tribunal accepts that the applicant occasionally cannot sleep and feels nervous and shakes when they think about the incident. The Tribunal also accepts that the applicant prefers to manage their own mental health and is not being medically treated for depression. The Tribunal also accepts that from time to time in the future the applicant will be triggered by the incident and may consequently have interrupted sleep and feel nervous and shake, whether in Australia or Malaysia.
The Tribunal accepts the country information above that Malaysia has a well-established universal health care system and health care is generally accessible to all residents in urban areas in peninsular Malaysia, including Terengganu where the applicant is from, with health facilities generally available within five kilometres of residence. Public mental health services remain limited but affordable counselling and therapy services that can be easily accessed in person or online in Malaysia is available.
The Tribunal notes that the applicant merely asked if there was any chance for the applicant to stay in Australia, and if the Tribunal did not find in their favour, what were their options, when asked to comment on a summary of this accepted country information. The Tribunal therefore also finds that the applicant did not refute and has accepted this country information.
The Tribunal finds that the applicant can manage their lack of sleep, nervousness and shaking when triggered by the incident on their own in Malaysia, as they do in Australia, based on their evidence at the hearing, and the Tribunal further finds based on the country information that the applicant can easily access affordable counselling and therapy services in person or online in Malaysia if they need to reach out for support and thereby manage their mental health in relation to memories of the incident or generally upon return to Malaysia.
The Tribunal is therefore not satisfied that there is a real chance that the applicant will be harmed in the reasonably foreseeable future if they returned to Malaysia because of their mental health, based on the fact that the applicant’s condition is that they occasionally cannot sleep and feel nervous and shake when they think about the November 2018 incident, the country information accepted by the Tribunal and the applicant above, and the findings that the applicant can manage their mental health in Malaysia by themselves or by accessing affordable counselling and therapy services in person or online if they need to reach out for support.
Money owed to friends in Australia
Towards the end of the hearing, the applicant did ask if they could stay in Australia for one more year and then they could return to Malaysia, because they needed to repay $50,000, which they had borrowed from two or three Malaysian friends (expressly stating that the lenders were not loan sharks) in Australia to pay Malaysian hospital bills for their mother. The applicant said they have only repaid $10,000 to date and they wish to repay the whole debt before leaving Australia.
The Tribunal accepts that the applicant has an outstanding loan of $40,000 to repay to Malaysian friends in Australia and that the applicant will repay it quicker with the job the applicant has in Australia than if they returned to Malaysia, and notes that the applicant did not claim to fear persecution or allege that there was a real chance of serious harm if they returned to Malaysia because of this issue, nor provide any particulars.
This matter was raised by the applicant only at the end the hearing as a reason to delay their return to Malaysia and, out of an abundance of caution, the Tribunal finds, because of the timing and the manner in which the applicant mentioned this debt, the fact that the applicant had borrowed this money from friends and not loan sharks, and any suggestion of harm is mere speculation, that there is no real chance of serious harm now or in the reasonably foreseeable future if this debt remains to be repaid upon the applicant’s return to Malaysia.
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).
COMPLEMENTARY PROTECTION
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 finds that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. This is because the Tribunal found that the applicant does not face a real chance of serious harm, and so the Tribunal also finds the applicant does not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
FAMILY UNIT
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.
Rebecca Lee
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 3018

22 April 2024

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