1905722 (Refugee)

1905722 (Refugee) [2024] AATA 3636 (26 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905722
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Carolyn Wilson
DATE:26 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 July 2024 at 3:30pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – family responsibilities – bank loan – fear of ex-husbands – passport ban of five years – discrimination at work – mental health – economic hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 on 5 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 25 October 2018. The delegate refused to grant the visa on the basis that borrowing and owing money to a bank and family did not raise a well-founded fear of persecution for any of the reasons in s 5J(1)(a) and defaulting on a loan or being declared bankrupt did not amount to significant harm.
The applicant appeared before the Tribunal on 7 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. The Tribunal hearing was 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to be a citizen of Malaysia and provided copies of her Malaysian passport and MyKad identity card as evidence of this. Based on this evidence I accept she is a Malaysian citizen and find Malaysia is her receiving country.
The applicant arrived in Australia in August 2018 and applied for a Protection visa in October 2018. She claimed to be a single Malay Muslim woman from Selangor who had never been married. She claimed never to have been employed but received financial support from her parents to run an online business. She claimed to have left Malaysia because she borrowed MYR 43,000 from her family and MYR 164,000 from a bank and could not pay it back when a few months later her business went down due to the Malaysian economic situation.
Prior to the hearing the applicant provided written submissions dated 17 May 2024. Thes included a setting out her reasons for wanting to stay in Australia, and an 11 page written statement with attached documents setting out her life history. In her covering letter she made the following claims:
·If she is returned to Malaysia her father says she must take care of the family and cannot remarry. As the eldest sister in the family she must make sacrifices for the family.
·She wants the best care for her mother and her dream is to buy a comfortable house for her parents to live in.
·She has to take care of her two brothers in Malaysia. They steal and sell her valuables, and borrow money from her without paying it back.
·She has debts in Malaysia she needs to settle. She has a vehicle in her name with her ex-husband in Malaysia and she does not know if her name is blacklisted or not because sometimes she cannot pay the debt on time.
·Both her ex-husbands have threatened her, and say they will hurt her if they see her in Malaysia.
The statement setting out her life experiences in Malaysia and Australia included the following:
·She has an older brother, younger brother, and two younger sisters. One of her sisters lives with her in Australia. The other works in a [workplace] in Sarawak as a [Occupation 1]. Her older brother is unemployed, lazy, and has drug problems. Her younger brother works only part-time because he is sickly due to [an] accident. Her father is retired and has high blood pressure and diabetes. Her mother has multiple sclerosis and is partially paralysed.
·As the oldest girl in the family she was expected to help her parents and the family. Her siblings were favoured in their access to education. In Malay culture preference is given to sons and the most intelligent children. She was only average at school but good at sport and singing, which was not supported or appreciated by her family. Her father belittled her.
·She started working at age [age]. She met her husband and married in 2011. She wanted to marry young to escape her toxic home environment. At first she was happy but then realised her husband was lazy and using drugs. He forced her to take out a loan to buy a motorcycle for him. She also used all her savings to start a business with him.
·Her health suffered and she left her husband. He sold all her belongings and came to her parents’ house asking for money. She formally divorced him after 7 years of marriage.
·Her mother became sick and was diagnosed with multiple sclerosis. Following surgery her mother became partially paralysed. Around that time the applicant enquired through a friend about working in Australia. She paid an agent a $10,000 fee but after she paid the agent disappeared. She put aside her dream of working in Australia and looked after her mother instead.
·In around 2016-2017 she had surgery for fibroids. Her younger sister cared for her and their mother whilst the applicant recovered from surgery.
·She started working as an [Occupation 2], and also did [jobs] on the weekends. In addition to two jobs she had to cook for her family and look after her mother.
·A friend suggested she go to Australia and support her family from there. She took out a loan to finance her move to Australia.
·Once in Australia a friend helped her apply for a Bridging visa so she could work. She only understood she had applied for a Protection visa when she got the refusal decision. Her friend helped her appeal the decision.
·In December 2019 she married a Malaysian man in Australia. Soon into the relationship he was abusive, but she thought things would be better when they married. Two years later she became pregnant, but miscarried due to the pressure on her to support her family in Malaysia and her husband in Australia.
·Her employer in Australia offered to sponsor her, but she had problems renewing her Malaysian passport. She spent money on lawyers but they either scammed her or couldn’t help her get the work visa.
·In June 2023 she asked her husband to move out, and in August 2023 went to the Women’s Legal Service to get help to divorce him. She is trying to recover from this abusive relationship. She attends counselling and is taking medication to help with depression, anxiety, panic attacks, and sleep problems.
·Her family continue to put pressure on her. Her mother wants to know when she is coming home to visit, her brothers borrow money and never pay it back, and her father says she has to help because they are family.
At the hearing the applicant said her second ex-husband and his friend completed her visa application form and that is why a lot of the information was incomplete or incorrect. She spoke to the issues raised in her pre-hearing statement and her sister gave oral evidence. Her main fear in returning to Malaysia is that she will be expected to care for the family, but she also expressed concerns about earning capacity and owing money, her ex-husbands, her mental health, ability to get another passport, and her preference to remain in Australia.
Following the hearing the applicant provided a written statement dated 12 June 2024, repeating some of her claims and evidence and providing new claims as follows:
·She realised during the hearing that she made a mistake in applying for a Protection visa and in trusting an agent to lodge it for her.
·She now fears returning to Malaysia because the Malaysian government will confiscate her passport and bar her from leaving Malaysia for 5 years because she applied for a Protection visa in Australia.
·She cannot relocate in Malaysia because even if she does her ex-husband can come looking for, and she feels free in Australia being away from her abusive father and older brother with drug problems.
·She faces financial problems because she is the main child responsible for supporting her family, and she has debts to pay.
·Wherever she goes in Malaysia she encountered discrimination in the family, at work, and in relationships, causing her to have trust issues.
·She has contemplated suicide in the past because she faced a mental health crisis and depression. She is still vulnerable to suicide. When she hears suggestions that she should return to Malaysia she is overwhelmed by feelings of fear, sadness, anger, worry, and hatred.
·She is currently studying in Australia to be a [Occupation 3]. She needs to stay here to finish her study. She has skills that are in demand in Australia.
Family responsibilities
The applicant says she is expected, as the oldest child, to care for her parents and brothers both economically and practically.
She describes her father as abusive, and gave examples in her written statement and oral evidence of how he belittled her with name calling such as ‘useless child’, had a hot temper, would swear at the family, and was not supportive of her. She does not claim he has been or would be physically abusive, rather that she feels belittled by him, he says bad things to her, and he places expectations on her that she will sacrifice her independence to look after her aging parents. When she talks to her father he keeps asking her when she will come back to look after them. He has told her she will not need to work, as he has enough money in his retirement for the family. Her sister gave evidence that the father favours his sons and when they do something wrong he blames the daughters in the family, particularly the applicant as the eldest daughter.
I accept the applicant’s parents are elderly and frail due to medical issues. In particular her mother has a number of serious health conditions. At the moment she is cared for by the father and the applicant says she will be expected to step in and care for her mother and father if she returns to Malaysia, as well as support the family financially. The applicant has two brothers and two sisters. Her brothers both live with the parents. One sister is in Australia, and another is living and working in Sarawak. I put to the applicant that she could do as her sister in Malaysia has done, that is, live independently from her family. She said as the oldest sister she is expected to care for the parents and her younger sister is excused from doing so because she is favoured as the smart one with a good job. But she also said she loves her parents and she wants to care for her mother. If she is living in Malaysia she could not do anything but make sure her mother was cared for.
The applicant said her two brothers live with her parents. Neither of them is married. Her older brother is not working and her younger brother has an online business selling food. In written submissions she described her older brother as lazy and influenced by friends to take drugs. In her most recent submission she said he was frequently in and out of prison because of drug problems, but has not provided evidence of this or details of what she means by frequently or the types of charges and convictions he may have faced. She does not claim to fear physical harm from her brothers.
The applicant claims her father has told her she had married twice already and therefore he will not approve of her marrying again. She has had two relationships that she describes as unhappy and abusive, particularly the second marriage in Australia. It is speculative that she may choose to marry again and is not currently in a relationship or claiming to be looking for another partner.
The applicant’s father is now an elderly man. He may still have a temper and still say things that are verbally abusive, belittling, and that erode her confidence. However, I am not satisfied on the evidence provided that his verbal abuse or belittling he may do in the reasonably foreseeable future is serious harm as envisioned by s 5J(1)(a).
The applicant claims she is the ‘main child’ responsible for supporting her family financially. She provided some evidence of transferring money to Malaysia, although some of the records were undated and did not show who had sent the money. The evidence provided was for bank transfers for MYR 3,560 (around AUD 1,200). At the hearing the applicant said these receipts were for money sent to her brother to help with their mother’s medical expenses and a transfer sent directly to the landlord FM to pay rent. Although the receipts do not show the applicant was the sender, I accept her oral evidence that this was money transferred by her. At the hearing the applicant said she had been out of work for some months, due to health issues and recovering from her divorce, and was currently living on savings and financial support from her sister. She has not been sending money to Malaysia during this period.
In the applicant’s statement she speaks of borrowing money or being supported by her sister at times in Malaysia, and the sister in her written statement also said that in Malaysia the applicant often asked to borrow money from her. The applicant claims her two brothers ask for money or sell her valuables, but no evidence of her sending money for their personal use was provided and it is not apparent what ‘valuables’ she left in Malaysia for them to sell. If they have asked her for money, she too has asked siblings for money in the past. She has also willingly sent money to her brother to pay for the mother’s medical costs suggesting she trusts him with that money. There is no evidence from her sisters that the brothers put demands on them for money, and I do not accept they would do so only to their oldest sister. Particularly when they have another sister closer in Malaysia who has a good job in a [workplace].
I consider the applicant has exaggerated or embellished the level of financial support she has provided to her family to date, the demands on her for money, and the expectation that she will financially support the whole family. I accept she has sent money on occasion to her family and likely gave her parents money when she lived there, but she has also relied on family members to help her financially. The applicant also gave oral evidence that her father has told her she will not need to work in Malaysia, that he has retirement savings or income, and he will financially support her if she stays home to care for her parents. I do not accept the applicant is expected to be the main financial source for her family in Malaysia nor that she faces a real chance of harm through financial abuse now or in the reasonably foreseeable future.
I acknowledge the applicant feels burdened by expectations put on her by her father, family, and herself. She is now a woman in her late [age range] who has largely lived independent of her parents since her first marriage at age [age]. The applicant says she loves her parents and wants to care for her mother if she returns, and I accept she may return to the family home to do so. Even taking into account the alleged verbal abuse and belittling by her father and claims that her brothers ask her for money, I am not satisfied the family responsibilities she feels and the family dynamics amount to serious harm of the type envisioned by s 5J(5). I do not accept she face a real chance of serious harm from her family.
Loans
In her written application the applicant claimed to have borrowed MYR 43,000 from her family and MYR 164,000 from a bank. At the hearing the applicant said the person who completed her application put that amount in there. She is not sure of the total of what she borrowed. She maintains her claim from the written application that she left Malaysia because she owed a lot of money. She said she took out many loans in Malaysia, but conceded she could only provide evidence of one. That is, a bank loan for MYR 16,000 taken out in 2018. She said she took this loan out to finance her travel to Australia. She has paid this loan off by sending money to her sister in Sarawak to make the payments. Following the hearing she provided receipts showing money transfers to her sister. Her sister told her the loan is now fully repaid.

There is limited documentary or other evidence to show the applicant owed MYR 43,000 to family and MYR 164,000 to a bank as claimed in her written application. The applicant made clear at the hearing that the errors and omissions in her visa application, such as regarding family, marital status, and employment history, were caused by the person who completed the application on her behalf. If they made up or omitted information in those areas, it is plausible they were also making up information for the protection claims. The applicant said she cannot provide evidence of other loans in Malaysia because she cannot access her banking information without personally attending the bank in Malaysia. I note however she was able to provide a document for the MYR 16,000 loan. She is also unable to provide a credible account of the alleged other loans amounting to close to MYR 150,000. I note also the written claim that she borrowed such a large amount relates to an alleged business said to have gone down due to the economic situation in Malaysia. However in her written submission dated 17 May 2024 she said she was working [in Occupation 2] and [part-time] on the weekends. I asked at the hearing if she ever ran her own business and she said she had a small on-line side business selling [goods] but could not remember when she did this. There is no evidence of a business that required loans of the magnitude of MYR 150,000 or of a business failing due to the economic situation.
The applicant said her first husband forced her to take out a loan for a motorcycle in her name. She is no longer paying that loan and fears she may be blacklisted for defaulting. She also said her husband threatened to sell the motorcycle for the money. The applicant has not provided evidence of the loan or when it was taken out, but her statement suggests it was around two years after they married in 2011. If the loan was not paid off, it is possible the motorcycle has been repossessed. If it was paid for, it is also possible her first husband has sold it. I do not accept she has been blacklisted for not paying off the loan, noting she got a loan from a bank in Malaysia in 2018. There is nothing to indicate she has an ongoing debt for the motorcycle.
I accept the applicant took out a loan for MYR 16,000 which has now been paid off. I do not accept the has outstanding loans in Malaysia, either to family or a bank. I find she does not face a real chance of harm for having outstanding debts because I do not accept such debts exist.
Ex-husbands
The applicant claims she fears her ex-husbands will harm her if she returns to Malaysia. As evidence of this she provided reports of women in Malaysia (unrelated to her) facing intimate partner violence and a new report of a woman beaten to death by her husband.
The applicant was first married in 2011. In her statement dated 17 May 2024 she wrote that she was happy in the marriage for the first two years, but the marriage soured when she realised her husband did not want to work and was asking her for money and wanting her to take out loans. They separated in 2016 and the divorce was finalised in 2018. At the hearing she said her first ex-husband continued to ask for money even after she left him. She told him to leave her alone because she had no more money. He threatened to sell the motorcycle she had bought, and after this she changed her phone number so he could no longer contact her. She has not heard from him since 2020, and he has not made any contact with her parents to look for her.
The applicant has not seen her first husband since 2018 and has not spoken to or messaged him since 2020. I consider the chance of him having an adverse interest in her now is farfetched when the relationship ended more than 8 years ago, there is no ongoing contact with him, no contact from him to her family, and no reason to interact with him.
I accept the evidence from the applicant that her second marriage in Australia was an unhappy one and that her ex-husband was violent towards her. Her sister provided corroborative evidence of this, by way of statement and oral evidence. The applicant has not seen her second ex-husband in person since the divorce last year. However they have had some contact through messages as he still drives a car that is in her name. She said he threatens her when he has issues with the vehicle. He was abusive in Australia, but she believes if they were in Malaysia he would have killed her, as family violence is worse in Malaysia. I note however, family violence and murder by an intimate partner is also a problem in Australia.[1] They are now divorced and there is no evidence he has been violent towards her since they separated. The only verbal threats he has made to her have been in relation to a car he drives that is still in her name. She gave oral evidence she will relinquish the car ownership to his name when the registration is next due. In Malaysia there is no joint property and no reason for him to contact her. I consider it speculative that he too may return to Malaysia or that he would have any interest in tracking her down to inflict harm when they are now divorced, if he returns to Malaysia.
[1] 1 woman killed every 11 days by an intimate partner, Domestic homicide - Australian Institute of Health and Welfare (aihw.gov.au)
DFAT reports violence against women and girls is a significant problem in Malaysia. Whilst the prevalence of reported intimate partner violence is relatively low, around 8 per cent of ever-partnered women, experts believe the actual incidence is likely much higher.[2] I acknowledge the applicant claims that she faced violence in her marriage in Australia and financial abuse from her first husband in Malaysia. However she is divorced, is not in contact with either ex-husband, and there are no reasons why she would need to have contact with either of them in Malaysia. I find her chance of harm from her ex-husbands is too remote to amount to a real chance.
Passport
[2] DFAT, Country Information Report Malaysia, 24 June 2024.
The applicant claims she had the opportunity in Australia to get a sponsored work visa but had difficulties getting her passport renewed. She provided documents sent to her by a migration agent regarding a potential application for a Skilled visa. The agent advised her she would need to leave Australia to make the application. I asked the applicant why she did not go offshore to apply for this visa and she said she could not because her Bridging visa would have been cancelled. The applicant no longer works for the company that offered to sponsor her and there is no evidence of an ongoing or current offer to sponsor her.
In a post hearing submission the applicant claimed the Malaysian government will confiscate her passport and bar her from leaving Malaysia for 5 years because she applied for a Protection visa in Australia.
DFAT reports Malaysians who are returned from Australia face a passport ban of five years under an agreement between the two countries. DFAT says in practice returnees are unlikely to come to the attention of the Malaysian authorities unless they were deported or apply for a new passport through a diplomatic mission overseas.[3] Whether the applicant returns voluntarily or is deported, if she has no visa to remain here, is a matter in her control. It appears the applicant may not have a current Malaysian passport, noting the one she arrived in Australia expired in 2020. She provided a copy of a temporary travel document she obtained from the Consulate General of Malaysia Melbourne in October 2022. If she does not have a current travel document she will need to apply for a passport or other travel document from a Malaysian consulate in Australia to allow her to return to Malaysia.
[3] DFAT, Country Information Report Malaysia, 24 June 2024.
If the applicant faces a ban of 5 years in Malaysia to obtain another passport, she has not identified how this may amount to serious harm. Serious harm is not exhaustively defined in s 5J, but s5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. The examples given in s 5J(5) refer to threat to life or physical safety or subsistence. I do not accept not being able to travel internationally for a period of 5 years is a threat to her life, physical safety, or ability to subsist. I acknowledge the examples given are not exhaustive however I am not satisfied a period of 5 years for which she may not be granted a passport amounts to serious harm of the type envisioned by the Act. I find the applicant does not face a real chance of serious harm if she is denied a passport for 5 years on return to Malaysia.
Discrimination at work
The applicant said she fears facing discrimination or bullying at work in Malaysia. In her 17 May 2024 statement she said her first supervisor at work when she was 18 withheld salary, was violent, and fired her without notice. At another job she said the older colleagues bullied her as a younger employee. There is no suggestion she would return to either workplace or that there was ongoing bullying or harassment after she left. She also provided a brief report from 2020 that stated 50 per cent of Malaysian women have experienced a form of gender discrimination in the workplace including sexual harassment, violence, balancing work and caring responsibilities, and gender stereotyping.
If the applicant experienced workplace bullying or discrimination in the past in Malaysia it does not necessary follow she will in the future. Her evidence is that she was mistreated as a young employee, but she is now a more mature woman with more workplace experience in both Malaysia and Australia. There are laws in Malaysia protecting workers, such as the Employment Act 1955. DFAT reports migrant workers in Malaysia are reported to have suffered abuses ranging form excessive recruitment fees to violations of terms and conditions of employment. However the applicant is not a migrant, but a Muslim Malay. That is, she is a member of the majority ethnicity who benefit from preferential treatment in employment and economic programs.[4] I find the chance of the applicant facing bullying or discrimination at work as a more mature female employee and Muslim Malay, is speculative and too remote to amount to a real chance.
[4] DFAT, Country Information Report Malaysia, 24 June 2024.
For these reasons I find the applicant’s fear of persecution is not well-founded. I find she does not meet the refugee criterion.
Complementary protection
I have considered whether there is a real risk of significant harm if the applicant is removed from Australia to Malaysia. ‘Significant harm’ is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. Treatment that would meet these definitions involve an act or omission that is inflicted with a subjective intention to bring about the suffering caused by their conduct.
The applicant claims her mental health will worsen if she returns to Malaysia, and that she is at risk of suicide. She claims to be suffering from depression, anxiety, panic attacks, and sleep problems, and to be undergoing treatment for these issues with medication and counselling. She provided copies of prescriptions for an antidepressant dated March and November 2023, and a receipt for a counselling session in March 2023. No medical reports were provided to evidence she had been diagnosed with depression, anxiety, panic attacks, or sleep problems.
Malaysia has a well-established universal and accessible health care system. I do not accept the applicant would be unable to access anti-depressant medication in Malaysia. However, if her mental health is adversely, even significantly, affected by the return to Malaysia, this may not amount to significant harm. The definition of s 36(2A) is framed in terms of harm suffered because of acts of other persons. Harm resulting from the act of removal from Australia or arising from a mental illness on return to a receiving country is not significant harm as defined in the Act.[5]
[5] SZRSN v MIAC [2013] FCA 751 and SZRSN v MIAC [2013] FMCA 78; GLD18 v MHA [2020] FCAFC 2.
I have found the applicant does not face a real chance of harm from her ex-husbands or arising from discrimination or bullying in employment. Real chance and real risk has been found to equate to the same threshold. For the same reasons given above, I find there is not a real risk she will suffer significant harm from either of her ex-husbands, or future employers or workplaces.
The applicant fears she will be expected to care for her aging parents and her brothers and sacrifice her independence if she returns to Malaysia. I do not accept this is a necessary and foreseeable consequence of her being removed from Australia to Malaysia. I find as an independent adult in her late 30s she can choose not to return to the family home, as her sister in Malaysia has done. However, if she chooses to care for her mother, as she has said she wants to do, I do not accept any belittling from her father or any other family pressure or toxic behaviour amount to torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment as they are defined in the Act. I am not satisfied the applicant faces a real risk of significant harm from her family.
The applicant claims to fear returning to Malaysia because she may be banned from holding another passport for 5 years. Having regard to the definition of significant harm I do not accept being unable to hold a passport for 5 years amounts to cruel or inhuman treatment or punishment or to degrading treatment or punishment or any other form of significant harm.
The applicant claims she will suffer economic hardship because wages are low in Malaysia. She fears she will not earn enough to cover her debts, her mother’s medical expenses and other expenses of the family. I have found the applicant does not have outstanding loans in Malaysia, and I have not accepted she is currently or will be expected to financially support the family. I accept she may earn less in Malaysia than she has in Australia however this would be due to the general economic conditions in the country, and not due to any intentional act or omission by a third party to inflict cruel or inhuman treatment or punishment, or degrading treatment or punishment. I find any economic hardship she may experience in lower wages in Malaysia does not amount to significant harm as defined in the Act.
I find there are not substantial reasons for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm for any of the reasons claimed.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Carolyn Wilson
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 3636

26 July 2024

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