1903613 (Refugee) - [2024] ARTA 601

1903613 (REFUGEE) [2024] ARTA 601 (29 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1903613
Tribunal:General Member X Emery
Date:29 October 2024

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

Statement made on 29 October 2024 at 12:29pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – harassment and serious threat from the loan shark – assaulted by the drug dealer and their associates – evidence about the claimed debt was vague, general, and implausible – applicant had provided inconsistent evidence – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF 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 applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are citizens of Malaysia, applied for the visas on 31 May 2018. On 15 February 2019 the delegate refused to grant the visas on the basis that they were not persons in respect of whom Australia has protection obligations.
The applicants lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (‘the AAT’) on 18 February 2019. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (‘the ART’ or ‘the Tribunal’).
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the ART in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for purposes of the proceeding after 14 October 2024. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the ART: item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
The first named applicant (‘the applicant’) appeared before the AAT on 29 May 2024 and 7 August 2024 to give evidence and present arguments. She also gave evidence on behalf of the second and third named applicants who are her minor children. The hearings were conducted with the assistance of an interpreter in the Malay and English languages.
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 (‘the Department’), and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicants are a family unit. The first named applicant, [Ms A], was born in [Town 1], Kelantan, Malaysia in [year]. She is married. Her husband, [name], is also in Australia, having arrived prior to the applicants, in about November 2016. [Ms A] said she thought her husband held a Bridging E visa in Australia, but was unable to say with any certainty whether he had also applied for protection, whether he had had a review before the AAT, or when his Bridging E visa would expire.
The second named applicant, Miss [B] is [Ms A]’s daughter, and was born in [Town 1], Kelantan, Malaysia in [year]. The third named applicant, Master [C], is [Ms A]’s son and was born in [Town 1], Kelantan, Malaysia in [year].
Before me are copies of the following identity documents which support the applicants’ claimed identity and familial relationship:
a.The biodata page of each of the applicants’ Malaysian passports.
b.The applicants’ Malaysian national identity cards.
c.Birth certificates for the second and third named applicants.
d.The ‘Kad Perakuan Nikah’ (or proof of marriage card) for the first named applicant and her husband.
The first named applicant’s father passed away in 2014. She has no contact with her mother or younger siblings and does not know where they are. Prior to travelling to Australia, the applicants lived with the first named applicant’s husband’s family in , [Town 1] in Kelantan. The first named applicant claimed neither she nor her husband have any contact with his family (her in-laws).
The applicants arrived in Australia on [date] March 2018 as the holders of Electronic Travel Authorities (Subclass 601), and have remained in Australia since this time.
Evidence before the Department of Home Affairs
The applicants applied for Protection (Subclass 866) visas on 31 May 2018. Identical claims to be owed protection were made for all three applicants. In summary, the applicants’ claims were as follows:
a.The first named applicant and her husband used to run a [stall] in their village market. It suffered losses after the government imposed a goods and services tax in April 2015. They took out loans of RM 29,500 from loan sharks and her husband agreed to repay in monthly instalments. The interest rate was seven times the principal value. The income from their business was uncertain and they were struggling to meet their living expenses. The loan sharks started to harass her and her family. They attempted to destroy the chairs and tables at the [stall] and sabotaged their electricity supply.
b.They approached the authorities or police but were avoided or ignored.
c.Another business close by, a [shop] was operating and had an increasing number of visitors. The applicant’s husband decided to personally investigate. After two weeks he found out the [shop] was a drug processing facility producing a range of different drugs including ecstasy, ice, heroine, and cannabis. This was done with great secrecy and her husband managed to enter the drug processing facility by pretending to be a customer wanting to buy the drugs and wanting to be a dealer. The applicant and her husband decided to inform the police about it. Her husband went to the nearest police station to lodge a complaint. He saw a car parked at the police station that was the same vehicle he saw at the drug processing facility, which made him suspicious of connections with the local police. The police officer receiving his complaint was very rude and punched the table.
d.The applicant and her children went to live with her parents. Her husband departed for Australia because he was being harmed and assaulted by the drug dealer and their associates.
e.The applicant then agreed to live with her in-laws. The drug dealers were being sought by a specialist unit of police. She received messages through her mobile phone, threatening to harm her if she didn’t give her husband’s whereabouts, and an attempt was made to abduct her son. Their place was sprayed with red paint and a bullet was placed at her in-laws’ house gate.
f.The applicant fears that if they return to Malaysia, her children will be abducted, or that she and her family will be cut to pieces if they don’t give up her husband’s hideout, or they will be shot. She fears their home will be burned, and her dignity and honour will be ruined. The drug dealers are looking for her husband because he informed the police about their drug processing facility.
g.The loan sharks will force them to pay all of the amount borrowed including interest.
h.She fears the loan sharks, the drug dealers, and corrupt members of the authorities if they return to Malaysia. The authorities cannot protect them because of corruption and bribery by criminal organisations in Malaysia and drug dealer networks operating outside Malaysia.
The applicants were not invited to an interview with the delegate. No additional material or evidence in support of their claims to be owed protection was provided to the Department.
On 15 February 2019, the delegate refused to grant the applicants protection visas. The delegate was not satisfied that the applicants’ claimed fear of harm was for one of the reasons in s 5J(1)(a) and found they therefore were not refugees. The delegate also found that the applicants could obtain protection from the authorities of Malaysia, such that there was not a real risk that they would suffer significant harm and that they were therefore not owed complementary protection.
Evidence before the Tribunal
As set out above, the applicants applied for review of the delegate’s decision on 18 February 2019 and provided a copy of the delegate’s decision record with their review application. Other than evidence of the applicants’ identity, no additional written information or evidence has been provided to the Tribunal in support of their claims for protection.
At the hearings on 29 May 2024 and 7 August 2024, I discussed with the applicant her and her children’s travel history, her family, her education and employment history, the places the applicants had lived in Malaysia and Australia, the circumstances in which they made the protection visa application, their claims for protection, and the reasons they do not wish to return to Malaysia.
The applicant’s oral evidence was that she travelled to Australia in March 2018 because she had to flee from the loan shark, her family, and because she wanted to reunite with her husband who had arrived in Australia one year earlier. She travelled to Australia with her children and her cousin. Her cousin assisted her to travel to Australia because she was a frequent traveller. The applicant promised to pay for her cousin’s ticket to Australia. Her cousin assisted her to travel to Australia and then returned to Malaysia.
The applicant claimed that a friend recommended another person to assist with her visa application. She doesn’t know this person and only met them through a call. She told them her story, but she is not sure if the application form is 100% accurate. She told them that she had opened a shop and there was a person involved in drugs, and also about the loan shark and problems with her family. Since applying for protection, she has not read the application form or had it read to her in her language.
The applicant’s oral evidence about her claims was as follows. Her husband came to Australia in about November 2016. The applicants then moved in with his parents (being the second and third named applicants’ grandparents). The applicant asked her husband to save money for them to travel to Australia too, but he was unable to save much money or send much money to the applicant in Malaysia. The applicant read that she could borrow money from a loan shark. She discussed this with her husband, but he did not agree because she was living with his mother, and he was concerned it would place his mother in danger. She told her husband she really needed to borrow money and that once she was in Australia she would repay it. She decided to borrow RM15,000 from a loan shark and organised the applicants’ passports. The applicant then told her in-laws that she was going to Australia and had borrowed RM15,000 to do this. Her in-laws were very angry and asked her to leave, and said it was no longer safe for them so they would have to leave their home also.
After this, the applicant asked her cousin to take them to Australia and did not repay the loan shark. They lived with her cousin in Kuala Lumpur for one month prior to travelling to Australia.
I asked the applicant to tell me about the loan. She said she borrowed RM15,000 in about January 2018. She could not say who the loan shark was, only that she read the news about borrowing from a loan shark. She told the loan shark she would settle the debt in six months but once she received the money she came to Australia. She said the agreement was that she would pay RM2,500 per month for six months but that if she missed a payment, she would have to pay seven times that amount. I put to the applicant that on her evidence, if she repaid on time she would not have to pay any interest on the loan as RM2,500 per month for six months was equal to the principal loan of RM15,000. The applicant said she did have to pay interest, but was unable to explain how given her evidence of monthly repayments of RM2,500.
The applicant claimed she saw a poster on the wall for the loan shark and just called the number on the poster. She met the loan shark and told them she had a husband working in Australia and that they would repay the money. The loan shark asked for her details and her address, and she gave them the address she rented, signed it and was given the money in cash. She claimed she gave a copy of her ID card and her husband’s ID card, which included her in-laws address. When asked what she signed, she said she didn’t know but was told she had to sign to receive the money. She does not have a copy of the document she signed. The loan shark was located about an hour from her home but when asked where she met the loan shark she was unable to explain beyond that they had met in a ‘different building’. She does not have any evidence of the loan or the debt. She had a photo of it when she arrived in Australia but no longer has it because it was on an old mobile phone.
She was meant to meet the loan shark to make repayments. But she did not make any repayments. She has not made any repayments since being in Australia.
The applicant claimed she doesn’t know where her in-laws are because neither she nor her husband has contact with them. She claimed her husband is not in contact with any of his seven siblings. The applicant claimed that once she has money she will try to find them and bring them to Australia.
She has not heard from the loan shark at all since borrowing the money, nor has her husband’s family been contacted as far as she is aware.
She fears returning to Malaysia because of the unpaid debt to the loan shark. She did not repay any of it and believes the debt will now be more than double, probably hundreds of thousands. She doesn’t have a place to stay and can’t go back to her family. If she does return to family, the loan shark will find out. She claimed that if she meets her family in Malaysia, the loan shark will look for her and get her family in trouble as well. Her plan is to save money and bring her family to Australia.
She doesn’t know where the loan shark is but if she returns home to [Town 1], they will be able to find her because it is not far from where she met the loan shark.
I also discussed with the applicant her claims to have been running a [stall] in Malaysia in [Town 1], about one hour from her husband’s parents in , [Town 1]. The applicant claimed she and her husband started the business in August 2015 and closed the shop in September 2016.
In about May 2016 a [shop] opened in front of their shop. After a few months they noticed there weren’t any [products]. Her husband went to check it out in about August 2016 and told the applicant that they weren’t selling [products] but were selling drugs. He could see it wasn’t [products] but things in small packets were being exchanged for money. They could tell it was drugs because they have seen it on the news. The next day her husband reported it to the police, but the police were very angry with her husband because he came without any evidence. The applicant said she thought this was because the police were already bribed. Two or three days later her husband was beaten up by people associated with the drugs. He was warned not to get involved. His finger was injured, and he went to the doctor and had an x-ray. I asked the applicant if she could provide any more details about the attack on her husband, but she was unable to provide anything further than that it occurred close to their stall, that there were many people, and that it wasn’t that bad because at that time it was only a warning.
They were scared after this and decided to close their shop. In September 2016 they closed the shop and they all returned to live with her husband’s parents. After this the applicant saw an advertisement in the news about coming to Australia. Her husband contacted them, and the person said he could come to Australia in November. He got his passport, visa and came to Australia in November 2016. Neither the applicant, nor her husband, have been harmed, or contacted by the drug dealers since her husband was attacked in about August 2016. The applicant did not experience any problems between when her husband came to Australia in November 2016 and when she travelled to Australia in March 2018, other than that she was stressed out living in Malaysia with two children and without her husband. I asked the applicant why anyone connected with the drug dealers would have any interest in her or her family if they returned to Malaysia some eight years since the events. The applicant responded that she didn’t know about this and was very scared about the loan shark and that the loan shark would still look for them.

She also claimed the that the cost of living is high in Malaysia, that there is theft, crime and killing, and it is difficult for the people in Malaysia.
The applicant also gave evidence about a [business] she has opened in [a city] and operated since about July 2022. Her and her husband both work in the [business]. If she has to return to Malaysia she will have to close her [business], but all of her savings are in this [business]. She likes it here in Australia where she can look after her children. Her children are used to living in Australia and are comfortable here.
Analysis, reasons and findings
The issue in this case is whether any of the applicants are a person in respect of whom Australia has protection obligations because they are a refugee or owed complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims regarding debt to a loan shark
For the following reasons, I do not accept the first named applicant has any debt to a loan shark in Malaysia or that she or her family face harm of any kind from the loan shark because that debt is unpaid. I do not accept this claim is credible.
Firstly, there are significant inconsistencies between the applicants’ visa application and the first named applicant’s oral evidence at hearing. In the visa application, the applicants’ evidence was that the loan was taken out because their [business] suffered losses after the government imposed a Goods and Services Tax in April 2015. However, in oral evidence at hearing the applicant said that she and her husband had not commenced the business until August 2015, that she had taken out the loan in January 2018 to facilitate her travel to Australia, and she made no mention of having borrowed money for the purposes of the [business]. Additionally, in the visa application it was claimed the loan amount was RM29,500. However, at hearing the applicant claimed the loan was for RM15,000. In oral evidence the applicant did not claim that she had experienced any harm from the loan shark in the past, because she had borrowed the money and travelled to Australia shortly afterwards. However, in the visa application it was claimed that the applicants had been harassed, and that the loan shark had attempted to destroy the chairs and tables and had sabotaged the electricity supply at the [stall]. In the visa application, it was claimed they approached the authorities or police but were ignored or avoided. No such claim to have sought assistance from the authorities was made in oral evidence at the hearing.
When I raised these inconsistencies with the applicant at the hearing, her evidence was that the person who helped her apply for the protection visa may have embellished her claims, that she didn’t write what was in her application, that the claims in her visa application weren’t true, and reiterated that she had borrowed money in January 2018 to fund her travel to Australia.
I do not consider this is a reasonable explanation for the inconsistencies between her oral evidence and the written claims. I do not accept that the claims in the visa application are simply an embellishment of the applicant’s true claims. Rather, the applicant has provided two entirely different stories about having borrowed from a loan shark, including the purpose and amount of the loan, when the money was borrowed, and the conduct of the loan shark. While I am prepared to accept a person assisted the applicant to apply for protection, I do not accept the applicant told this person her ‘true’ story about having borrowed money from a loan shark but that this person created an entirely different version of events surrounding the loan shark. The applicant provided no explanation for why the person who assisted her to apply would have undertaken to create false claims for her. The applicant also stated that she was unsure if the claims in her application were 100% accurate. Yet her evidence was also that she has not read her visa application or had it read to her, nor has she sought to provide an accurate account of her claims to the Tribunal prior to her hearing. I do not consider this is the reasonable conduct of a person who claims that she and her children are at risk of harm on return to Malaysia.
The applicant provided no explanation for why her visa application did not include what she says are her ‘true’ claims regarding the loan shark, particularly in circumstances where she claims to have taken out the loan in January 2018 and applied for protection only a few months later in May 2018. It is not clear why those ‘true’ claims would not have been included in her visa application given the events were so recent. That the applicant’s visa application didn’t include what she says are her genuine claims, undermines both the credibility of those claims, and the reliability of the applicant’s evidence overall.
In addition to these matters, the applicant’s oral evidence about the claimed debt was vague, general, and implausible. She was unable to give specific details beyond her claim that she borrowed RM15,000. She could not say who she borrowed from, what the interest rate was, or give specific details about where she met the loan shark to make the arrangements. She did not provide specific evidence about how she was to make the repayments to the loan shark. She claimed she was required to sign a document but was not sure what she signed and did not get a copy of this document. She stated that the repayments were RM2,500 per month for six months and that if she was late in making a repayment she would have to pay ‘seven times more’. When put to her that this would mean that if she paid on time, there was no interest payable at all, the applicant said she did have to pay interest, but that she didn’t know and that loan sharks are like that, they ‘usually trick us’.
Further, the applicant has provided no corroborative evidence of the loan or the debt. Initially she said she previously had a photo on an old phone but that she didn’t have it anymore. She later claimed that there was evidence but that she didn’t bring it because she was too young and didn’t know that she would need it. On its own, this lack of corroborative evidence is not determinative. However, coupled with the vague nature of the applicant’s oral evidence and the serious inconsistencies between the applicants’ visa applications and the first named applicant’s oral evidence at hearing, the lack of corroborative evidence adds weight to my conclusion that there is no debt to a loan shark.
I note that the first named applicant’s evidence was that the claims in the visa application are not true. Accordingly, I do not accept the applicant and her husband borrowed RM29,500 from a loan shark to assist with their business and that they were harassed and their business damaged or sabotaged when they were unable to make repayments.
I also do not accept the first named applicant borrowed RM15,000 from a loan shark in January 2018 to fund the applicants’ travel to Australia. It follows that I do not accept that she will be harmed or harassed on return to Malaysia because of this debt.
For the reasons given above, I am not satisfied any of the applicants face a real chance of persecution, or a real risk of significant harm, on return to Malaysia because of a debt to a loan shark.
Claims regarding harm from drug dealers
For the following reasons I do not accept the applicant’s claims that there was a drug dealing or manufacturing business close to her and her husband’s [business], that her husband reported this business to the police, and that after this her husband was beaten and warned not to get involved. I do not accept the applicants face any harm on return to Malaysia from the drug dealers or manufacturers or corrupt officials connected to the drug dealers. I do not accept this claim is credible.
Overall, I found the applicant’s oral evidence regarding these claims to be general. She had difficulty articulating specific detail when pressed. For example, when asked if she could explain in more detail about the assault on her husband, the applicant said only that it happened close to their stall, that there were many people and that it wasn’t that bad because it was only a warning. I find it implausible that if her husband was assaulted by a large group of people and fractured his finger, she would not be able to provide a more fulsome account of events even though she may not have been present, given it was an assault perpetrated against her husband and said to be the catalyst for him travelling to Australia. When asked how her and her husband had known that the business was selling drugs, the applicant could not provide a detailed narrative that was convincing or persuasive.
There are also significant inconsistencies between the written visa application and the first named applicant’s oral evidence regarding their claimed interaction with the drug dealers/drug manufacturing business, as follows:
a.In the visa application it was claimed that the applicant’s husband decided to personally investigate a [shop] business close to their business. He investigated for two weeks and discovered that the [shop] was a drug processing facility. He entered the drug processing facility pretending to be a customer and that he wanted to become a dealer. He found out they were producing all different kinds of drugs including heroine, cannabis, ice, and ecstasy. However, at hearing the applicant’s evidence regarding this was vague, and she claimed that her husband could see that they weren’t selling [products] and were exchanging small packets for money, and they knew this was drugs because they had seen this on the news. She made no claim that her husband had entered the drug processing facility, nor did she claim to know what drugs were being produced or sold.
b.In the visa application it was claimed that after the applicant’s husband reported to the police, she and the children went to live with her parents. However, this was not consistent with her oral evidence at hearing, where she claimed that her father had passed away in 2014 and that she had no relationship with her mother since her marriage in April 2012.
c.In the visa application, it was claimed that after the applicant’s husband reported the drug dealers to the police and fled to Australia, the applicant received death threats on her mobile phone, their home was sprayed with red paint, there was an attempt to abduct her son, and a bullet was left at her parents-in-law’s house gate. However, in oral evidence to the Tribunal, the applicant claimed that her husband was assaulted on one occasion around the end of August 2016, that they closed their business in September 2016, and that in November 2016 he travelled to Australia. The applicant said neither she nor her husband had experienced any other problems or harm other than the assault in August 2016. She stated that neither she nor her husband had been contacted by the drug dealers or anyone associated with them since they closed their shop and moved back to her parents-in-law in around September 2016. She stated she had had no problems from the time her husband travelled to Australia in November 2016 until she came to Australia in March 2018, other than that she was stressed because she was living in Malaysia with their two children and without the support of her husband.
When these inconsistencies were raised with the applicant at hearing, she claimed that what was in the visa application was written by someone else and that they had added things, but that her oral evidence was true. She confirmed that no attempt was made to abduct her son and that this claim in her visa application was not true. I do not accept this is an adequate explanation for the significant inconsistencies between the applicant’s oral evidence and the written claims. I have accepted above that a person assisted the applicant to apply for the protection visa. However, I do not accept the applicant spoke to this person over the phone, told them what had happened in Malaysia, but that this person then decided to add to, or embellish her true claims. The applicant provided no explanation for why the person who assisted her to apply would have undertaken to create false claims for her. Nor did the applicant provide any explanation for why she has taken no steps to ensure the accuracy of her protection claims, between lodging the visa application and attending the Tribunal hearing. I do not consider this is the reasonable conduct of a person who claims that she and her children are at risk of harm on return to Malaysia. These inconsistencies lead me to conclude that the first named applicant is not a reliable witness and the applicants’ claims are not credible.
For the reasons given above, I am not satisfied any of the applicants face a real chance of persecution, or a real risk of significant harm, on return to Malaysia, from the drug dealers, their associates or corrupt police or officials connected with the drug dealers.
Remaining claims: preference to remain in Australia, hardship on return to Malaysia
The applicant’s evidence was that she and her family are settled and happy in Australia. They have their business, and the children go to school. Her children are adapted to life in Australia and don’t want to live in Malaysia. I understood her claims to be that they prefer to remain in Australia and that they believe life will be more difficult in Malaysia. If they return to Malaysia, the applicant will have to close her business in Australia, and they will experience financial hardships.
I accept the applicants have a preference to remain in Australia where living standards may be higher and where there may be more opportunities. I acknowledge that my decision is likely to be very disappointing to the applicants, who are settled here and see their futures in Australia. I accept that were the applicants to return to Malaysia, the first named applicant would need to close her small business in Australia and that this would be disappointing and may cause financial losses.
I also accept the applicants may experience a period of hardship, including financial hardship, on return to Malaysia as they readjust to living there, and look for work and accommodation.
Despite these findings, I am not satisfied that any difficulties or hardships, including economic hardships, any of the applicants may face in leaving Australia and returning to Malaysia, or in resettling in Malaysia, would be for one of the reasons in s 5J(1)(a), or that it would involve serious harm to the applicants, or would involve systematic and discriminatory conduct. Accordingly, I am not satisfied that the applicants have a well-founded fear of persecution on return to Malaysia, in the reasonably foreseeable future.
I am also not satisfied that any hardships the applicants would face in departing Australia and returning to Malaysia would involve arbitrary deprivation of life, the death penalty, or an intentional act or omission of another person amounting to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Accordingly, I am not satisfied that as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk they will suffer significant harm.
Conclusion
For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions under review.
Date(s) of hearing:               29 May 2024 and 7 August 2024
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.
…