1904718 (Refugee) - [2024] ARTA 144

1904718 (Refugee) [2024] ARTA 144 (12 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1904718

Tribunal:General Member S Aster
Date:12 December 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 12 December 2024 at 9:32am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – threats from debt collector – economic conditions – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 on 19 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man from [Town 1] in Sabah, Malaysia. He self-identified as of Kadazan-Dusun ethnicity and Christian faith. Prior to his arrival in Australia, the applicant worked as [an occupation 1] for [Employer 1] in [Town 2].
The applicant was married [in] December 2007 and the couple have [number] children aged [specified ages]. His wife, children, father and siblings live in [Town 1]. The applicant’s [brother] cares for their father who is elderly and unable to walk.
The applicant arrived in Australia [in] March 2018 on a Subclass 601 Electronic Travel Authority visa. He applied for a protection visa on 24 May 2018, claiming that he could not earn a sufficient wage to support his family in Malaysia. The delegate did not accept that the economic hardship that would be faced by the applicant would amount to serious or significant harm and refused to grant the visa.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CLAIMS AND EVIDENCE
Evidence before the Department
On his application for protection form, the applicant said he left Malaysia to save his wife and children from debt collectors. The applicant claimed that his salary was insufficient to cover his family’s expenses. He borrowed [amount] MYR from [Business 1] with 10% interest. The applicant’s financial situation worsened, and he was only able to pay the monthly interest. The applicant experienced anxiety when he received calls to collect the debt. He expressed concern that he would not find a job that paid well enough to service his debt and fear that the money lender would be angry if he did not make repayments.
The applicant reported that he speaks, reads and writes in Malay, English and Dusun. He listed past employment in [Country 1], Johor, Sabah and Kuala Lumpur.
The applicant was not interviewed by the delegate.
Evidence before the Tribunal
On 27 February 2024, the Tribunal wrote to the applicant to request that he complete a pre-hearing information form. On 1 March 2024, the applicant returned a completed form. In addition to the information previously provided, the applicant advised that:
·His wife earns 1,300 MYR (approximately $460 AUD) per month as a cleaner. They pay someone to watch the children while she is at work, especially the youngest child.
·He [has specified] siblings. Most of his siblings have their own families and financial responsibilities.
·His father is [age] years old and uses a wheelchair. He receives some financial aid from the government, but it is not enough. The applicant’s brother cares for their father and cannot take paid employment. He has [number] children of his own. The applicant sends 750 MYR per month to his brother.
·In 2022, the applicant borrowed $[amount] from an Australian bank.
Finally, the applicant wrote: “I just need two years from now to try fix my situation and I will return to my country after.”
Included with the completed form was:
·A screen shot of a personal loan with weekly repayments of $101 and a balance of -$14,186.34.
·A screen shot showing monthly payments of 750 MYR to the applicant’s brother, [named].
·A payslip issued to the applicant’s wife by [er employer] in January 2024.
·photos of the applicant’s family and scanned copies of Malaysian identity cards (MyKads) issued to his father, brother, wife and children.
The applicant appeared before the Tribunal on 11 December 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 applicant’s oral evidence will be discussed below where relevant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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, I have 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.
REASONS AND FINDINGS
The applicant is [an age]-year-old man of Kadazan-Dusun ethnicity and Christian faith. He is married with [number] children. I accept that the applicant financially supports his immediate family and contributes financially to his brother who cares for their father. I accept that he is concerned about the economic situation in Malaysia and would prefer to remain in Australia to improve his financial prospects.
The applicant gave evidence that he owed about $10,000 on the loan taken in Australia by the date of the hearing. He said the loan he took out in Malaysia was now paid off.
The applicant expressed fear that he would be unable to secure employment in Malaysia and if he did secure employment, he would not earn a wage sufficient to support his family. The applicant said there is a lot of competition for jobs, and he has no formal qualifications.
At the end of the hearing, the applicant speculated that he may get depression or suffer poor mental health if he cannot support his family. He confirmed that he has no current diagnosis.
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
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 her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
For the reasons below, I do not accept that the applicant faces a real chance of persecution for reasons of race, religion, nationality, membership of a particular social group, his political opinion or for any other reason arising on the facts. Nor do I accept that the applicant faces a real risk of significant harm for these reasons or any other arising on the facts.
Refugee criteria
The applicant gave no evidence to suggest that he experienced past harm because of his race, religion, nationality, membership of a particular social group or political opinion. He did not express a fear of harm in the reasonably foreseeable future from Malaysian authorities or any other person for any of the reasons set out in s 5J(1) of the Act.
Article 8(2) of the Malaysian Constitution forbids discrimination against citizens based on religion or race. Article 153(2), however, accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’ (known as Bumiputera), thus permitting affirmative action policies.[2] The 2020 Malaysian census recorded that 69.4% of Malaysian were Bumiputera. The applicant falls within this category of persons and would benefit from affirmative action policies.
[2] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 29 June 2021
At the date of the hearing, the applicant was employed in a factory operated by [Employer 2]. Prior to departing Malaysia, he worked as [an occupation 1]. The applicant confirmed that his wife was still employed as a cleaner at a school in Sabah. His [children] were all attending school. When the children require care, the applicant and his wife pay the applicant’s sister-in-law to care for them. The applicant raised no concern in respect to the safety of his family at the hearing.
Malaysia has a well-established universal health care system which is accessible to most of the population. The applicant and his wife have both held jobs in Malaysia and the applicant’s father receives social welfare. As discussed with the applicant, on the available evidence, he would not be prevented from accessing social welfare, health care or employment for any discriminatory reason.
I find that the applicant does not face a real chance of serious harm, now and in the reasonably foreseeable future, for any reason outlined in s 5J(1) if he were returned to Malaysia. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
Complementary protection
The applicant was primarily concerned about the availability of employment and the inadequacy of the wages in Malaysia.
As previously outlined, in order to fall within Australia’s complementary protection obligations, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm: s.36(2)(aa). 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).
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.
On the facts, there is no suggestion that the applicant would be arbitrarily deprived of his life or that the death penalty would be carried out on him. These elements are therefore not relevant to the applicant’s claims.
As discussed with the applicant at the hearing, he held employment when he lived in Malaysia and there was nothing arising on the facts of the case that would prevent him from finding employment again. He now has the benefit of many years of work experience here in Australia. As discussed at the hearing, The Department of Foreign Affairs and Trade reports that unemployment levels are low in Malaysia and there are labour shortages in many sectors.[3] The applicant no longer owes money to any financial institutions in Malaysia and would therefore not be at risk of being contacted by debt collectors sent by Malaysian loan providers.
[3] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024.
The definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s.5(1) of the Act require an element of intent. There must be an act or omission by which severe pain or suffering, or extreme humiliation, ‘is intentionally inflicted on a person’. As discussed with the applicant at the hearing, in this case the element of intent is not present. The general economic situation in Malaysia is not one that was intentionally designed by an individual or the state to cause significant harm to the applicant. While his financial situation may cause him stress, there is no intent on behalf of Malaysian society, the authorities, or the medical profession to prevent the applicant from gaining employment or accessing social services and health care that is available to other citizens for himself or his family. The applicant may not earn a wage comparable to that he would earn in Australia, however he would not face extreme humiliation and he is not in a position of vulnerability vis-à-vis the State.
Cruel or inhuman treatment or punishment and degrading treatment or punishment does not include an act or omission that is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights. The Complementary Protection Guidelines provide some guidance on certain circumstances which will generally not be considered inconsistent with Article 7. These include general socio-economic conditions, breach of social and economic rights, absence or inadequacy of medical treatment or imposition of treatment without consent, where that treatment is a medical or therapeutic necessity.[4] This policy supports a finding that the applicant’s claims do not amount to significant harm.
[4] Department of Home Affairs, Complementary Protection Guidelines, section 27, as re-issued 21 May 2015.
For the reasons above, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm: s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:  11 December 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.
…