1906532 (Refugee)
[2024] ARTA 522
•31 October 2024
1906532 (REFUGEE) [2024] ARTA 522 (31 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Ms Isobel McGarity
Respondent:Minister for Home Affairs
Tribunal Number: 1906532
Tribunal:General Member B Butler
Date:31 October 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 31 October 2024 at 5:43pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Chinese-Malaysian ethnicity – loan sharks – suicidal thoughts – mental health – came to Australia to earn money and pay off her debts – medical conditions – racial discrimination in Malaysia against Chinese Malaysians – applicant does not have a well-founded fear of persecution – was in a relationship with an Australian citizen – a suspected victim of human trafficking – poor treatment in Australia – cooperation with the AFP in a criminal matter – referral to the Minister – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 351, 499
Migration Regulations 1994, Schedule 2
CASES
SZTGM v MIBP (2017) 262 CLR 362
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
The applicant is a [age]-year-old woman who is a national of Malaysia of Chinese-Malaysian ethnicity. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia on [date] March 2017 as the holder of an electronic travel authority. The applicant applied for the visa on 6 August 2018. The delegate refused to grant the visa on 5 March 2019 on the basis that they were not satisfied that the applicant engaged Australia’s protection obligations.
The applicant appeared before the Tribunal on 28 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The applicant was represented in relation to the review. Her representative is from Anti-Slavery Australia which is a not-for-profit legal practice that provides specialist legal advice, assistance and representation to victim-survivors of all forms of modern slavery, including deceptive recruitment, forced labour and servitude.
The applicant’s representative provided submissions and support material to the Tribunal prior to the Tribunal hearing. She did not attend the Tribunal hearing.
BACKGROUND
Evidence before the Department
In her protection visa application, the applicant set out her claims for protection which are summarised as follows:
·The applicant’s husband was sick and required medical treatment. She came to Australia to earn money to support her husband’s treatment so that he could go to a good hospital in Malaysia. An agent facilitated her travel to Australia.
·Her agent found her a job in a [shop]. The boss at the shop, a woman from [Country 1], refused to give her salary to her and said that the applicant couldn’t open a bank account. She fought with her boss over her salary and the boss said she would give the salary to her family in [Country 1]. Her boss reported her to the police for touching her, but her boss had punched her.
·She had a daughter studying in Australia at the time, but her daughter did not want to see her. Her daughter had a boyfriend from [Country 1] who was wealthy, and she was afraid that her boyfriend might find out she doesn’t come from a good family.
·She cannot return to Malaysia because her family in Malaysia hate her.
The delegate found that the applicant’s claim of harm was not for a refugee reason in s 5J(1)(a). The delegate also had regard to the state of the Malaysian economy and found that the applicant would not face significant harm on the basis of economic hardship.
Evidence before the Tribunal
Prior to the hearing, the applicant’s representative submitted a bundle of material about the applicant’s current situation and her life in Australia.
The applicant provided a statutory declaration dated 23 October 2024 outlining her history in Malaysia and situation in Australia. It provides details about her experience of modern slavery in Australia and the assistance she provided to the Australian Federal Police (AFP) who were investigating the situation, her marriage to an Australian citizen, the death of her Australian [husband], her mental health, her health generally, and suicide attempts.
Applicant’s statutory declaration
In relation to her background in Malaysia, the applicant said she grew up in a poor village in Selangor and that her childhood was very difficult. She is one of [several] children. Her father also had two children with his mistress, such that there were [number] children in the family. Her father used to hit her and she was mistreated by both her parents as they favoured boys over girls. She completed up to [a grade] in primary school. When she was around [age] or [age] years old, her parents tried to force her to marry her brother’s boss because he would pay 10,000 ringgit to her family. She ran away from home as she did not want to be sold to the man. She started a relationship with a man who treated her poorly, and hit her when she was pregnant. The man left her when she was pregnant and she had to raise her son alone. Her son was born in [year]. She started a relationship with another man, and she had a daughter with him. They married 12 years after they first met.
Her husband was diagnosed with [medical conditions] at the age of [age] and was on [a treatment] for 12 years. They borrowed money from loan sharks to pay for his treatment. They said they would beat her if they didn’t pay back the money.
She asked her husband if they could suicide together because everything was too tiring. Her husband told her to go to Australia for a few months to have a break from her suicidal thoughts and she came to Australia in March 2017. A friend in Malaysia had told her that she could get paid $3000 a month in Australia, and she thought that if she was able to earn this amount in Australia, she could pay for her husband to obtain better treatment in Malaysia.
Once in Australia, she tried to find her daughter who was studying but her daughter did not want to see her because she did not have money, and she was scared that her boyfriend from [Country 1] may find out she isn’t from a good family with money. She does not have a relationship with her daughter, which is painful for her.
In August 2017, her first husband took his own life.
She started a job at a [shop] in [City 1] in October 2017, after seeing an advertisement for a [female] to work in the shop. In relation to working at the shop, the applicant said:
“I was trapped and exploited by my boss, a woman from [Country 1]. I was not paid at all. She said to me, “you’re new here and it’s easy to be scammed, I will tell you each week how much money you make and I will keep it for you”. She said because I did not have a visa and could not open a bank account, she had to keep all my money. When I wanted to go back to Malaysia to see my husband, I asked my boss to give me my money and she refused. She lied to me and I cried.
When I asked for my money for Chinese New Year, she hit me on the head and kicked me all over my body.
From the second week I started in the job, she pressured me to do [deleted]. [Details deleted]. I really had no choice but to continue to do it.
My boss would also punch me and hit my body. She said she would have me arrested or sent to [Country 1] if I tried to leave.
I could not leave the situation as I did not have a roof over my head, and had not received my pay.”
She told her daughter about her situation, but her daughter refused to help her leave the [shop].
She met her second husband, [Mr A], while working at the [shop]. He told her that if she wanted to leave, she could call him. He gave her his phone number secretly as her boss did not allow the workers to accept phone numbers of clients.
Around January or February 2018, her boss made a report to the police saying she had stolen money. The police searched her and could only find $100. At the police station, she called [Mr A] asking for help as she did not know how to explain things to the police in English. He came to [City 1], and they talked. She reports that he was angry about what had happened, and that he took her to the [shop], where she got $360[1] back. She was supposed to get more.
[1] This was clarified at the hearing to be $3600.
[In] January 2019 the applicant married [Mr A]. [In] January 2021, [Mr A] passed [away]. She said that she loved him and was devastated when this happened. She has suffered from depression and immense grief since his death. She has made plans for her ashes to be placed on top of Mr [A]’s, and her details will be carved on the other half of Mr [A]’s gravestone.
Her experience at the [shop] was being investigated by the AFP as she was a suspected victim of human trafficking. She attended many interviews with police and gave evidence. Around September 2021, he was told that as her boss had passed away, the AFP investigation could not continue. During the time of the investigation, she was on the Red Cross Support for Trafficked Persons program and referred to Anti-Slavery Australia. She was removed from the Red Cross program when the AFP investigation ended.
She claimed that she has been treated poorly by migration agents. Her initial protection visa application was found to be invalid because she did not attend a biometrics appointment. Her agent had told her the wrong date to attend the immigration office. She applied for a protection visa (the subject of this review application) with the help of another agent. At the time (August 2018), she was in a relationship with [Mr A] and they later married. She says she was given incorrect advice and the application was not prepared properly.
Due to not having work rights in Australia, she states people take advantage of her and she has suicidal thoughts. She has stopped taking some medications because she is not eligible for Medicare and the cost of medications is too high. She has applied to have the ‘no work’ condition on her bridging visa removed, but these attempts have been unsuccessful. She claimed that she received $40,000 from her late husband’s estate and the money has been depleted.
She has depression because a number of people she was close to have passed away, including her first and second husbands, and two of her sisters who passed away in January 2021 and October 2023.
She has suffered from suicidal ideation most of her life and has attempted suicide in the past. She was admitted in March 2023 to the psychiatric [unit]. At the time, her friend had returned to [a country] and she was lonely. In early 2024 she was scammed out of some money. This led to her depression worsening and she tried to suicide by cutting her wrist, however she woke up the next morning and was very sore. She did not see a doctor because she cannot access Medicare.
She has [diabetes] and high blood pressure. She pays privately for medication to treat her diabetes. She does not take medication for her blood pressure or depression because of the cost.
If she returns to Malaysia, she fears that her mental health will worsen, and she will kill herself. She says she does not have the courage to face life in Malaysia. She says that:
“To be completely honest, if I had to go back, I would go to the spot where my first husband is buried and kill myself. I cannot face the country where my husband committed suicide. I cannot face the people and I cannot face the reality in Malaysia.”
She claimed that as an older woman in her [age range], it would be difficult for her to find work and that any income she makes would not be sufficient to live in Malaysia. She also claims that she would not be able to treat her medical conditions in Malaysia. She claims that there is no one to look after her in Malaysia as her daughter refuses to talk to her.
Other materials submitted prior to the hearing
The representative also submitted:
·a letter of support outlining the applicant’s circumstances;
·a letter from the AFP summarising the applicant’s involvement in the investigation into her boss at the [shop];
·a letter from the Red Cross about the applicant’s involvement in their program;
·a letter from a Consultant Psychiatrist [dated] 3 November 2023 which refers to the applicant’s admission to the psychiatric unit from 15 March 2023 to 20 March 2023;
·a letter from a Mental Health Support Worker dated 21 November 2023 in relation to the applicant’s stay in the psychiatric unit and the need for the applicant to access support for her conditions;
·discharge records for the applicant’s stay at the psychiatric unit;
·her marriage certificate for her marriage to [Mr A] dated [January] 2019;
·photographs of the applicant with [Mr A];
·the death certificate for [Mr A], which records that he died [in] January [2021]; and
·a news article about the [incident] in which [Mr A] died.
The hearing
At the hearing, the applicant gave oral testimony largely consistent with her statutory declaration and her protection visa application. She became emotional when discussing aspects of her past, and she was offered an opportunity to take breaks during the hearing.
She said that in Malaysia, she is in contact with one sister (who she referred to as sister #[deleted], a reference to her place in the order of her siblings’ births) who regularly spends six months in Malaysia and six months in [another country] where she worked in a [workplace], however the sister plans to set up a [stall] in Malaysia and not travel to [that country].
Her daughter has returned to Malaysia from Australia however she is not in contact with her daughter and does not know whether her daughter is still in a relationship with the man from [Country 1].
Her son is currently in Australia and works in [City 1]. She thinks he is the holder of a Bridging A visa. She said her son, who is [age], came to Australia because he is unmarried and wanted to earn some money. Her son manages her money, as she doesn’t trust herself with it and he gives her $1000 a month for her expenses.
I asked her to tell me why she came to Australia in March 2017. She said that her daughter had run away from home in 2016 and moved in with her boyfriend. At the time, her husband was very unwell, and she was also unwell and so she begged her daughter to stay at home for one more year or until her father (the applicant’s husband) passed away. However, her daughter left and said she did not have future with her parents. The applicant’s mother passed away in January 2017, and the applicant contemplated suicide at the time but then found out her daughter had come to Australia, which gave her the idea that she may come to Australia to join her as her daughter is very precious to her.
I clarified with the applicant that her motivation for coming to Australia was to attempt to reunite with her daughter. The applicant agreed. She then went on to say that she (the applicant) did not return home during the time of her mother’s funeral in January 2017 because she was ashamed, noting that she owed money to family and she is the only one who is very poor with a daughter who behaved in such a way. This was a reference to the daughter leaving home. Around this time, she asked her husband to suicide with her, but he didn’t want to. She said she tried to suicide but was unsuccessful. She regrets the decisions she made at the time.
She said that she also came to Australia to earn money and pay off her debts. She estimates that she has paid off 80-90% of her debts, including all debts to family and friends in Malaysia. She said that she has stopped paying off money to the ‘ah long’ (loan shark) because she is far away from them. She thinks she owes 100,000 Malaysian ringgit to the loan shark, but wasn’t sure of the exact amount or whether it had increased.
I queried whether she was in contact with the loan shark. She said she is not in contact with them, as she is so far away from them and she doesn’t think they are bothered about her. She said she will be okay as long as she doesn’t return to Malaysia. She added that if she has to die, then she doesn’t care.
In relation to supporting herself in Australia, she said that she inherited $200,000 from [Mr A]’s estate after his death. I put to her that it appeared that she had sufficient funds to pay off the loan shark if she returned to Malaysia. She said that she has expenses in Australia and has not been able to work because she was told by an immigration officer that if she works, she will be deported. She later clarified that she thinks she has $20,000 to 30,000 remaining. As noted above, her son holds the money for her and gives her money for her expenses.
I asked her what she fears, or is concerned about, if she has to return to Malaysia. She said that she is in her [age range] and has never voted in Malaysia, and she thinks would be arrested for not voting. She thinks that upon return, customs in Malaysia would check her information and then they would find out how many years she has been in Australia, which would cause a problem. When I asked what sort of problems this would cause, she said that it was because she has not voted.
She added that Malaysia is country where racial discrimination occurs, and that Muslims have a good life, but Chinese do not get any assistance. She said that if you don’t have a job, you cannot have a life, and you cannot beg on the street. She said that she is not well, has illnesses and would find it difficult to work and may find it difficult to pay off the debt to the loan shark, which she estimated was 100,000 ringgit, but she said that she wouldn’t be surprised if the interest on the loan made it 500,000 to 600,000 ringgit.
She said she doesn’t want to go back to Malaysia because she has already put in place arrangements for the events after her passing, where she is to be buried and her ashes are to be placed near her husband’s, [Mr A].
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 issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.
For the following reasons, I have concluded that the decision under review should be affirmed.
I have recommended that the matter be referred to the Department to be brought to the Minister’s attention, for consideration under s 351 of the Act (discussed below).
Medical conditions
The applicant has diabetes, hypertension and depression. She is currently treating her diabetes, but not her other conditions. She pays for her diabetes treatment privately, as she does not have access to Medicare and therefore cannot obtain medication through the Pharmaceutical Benefits Scheme. She explained that this is because of the bridging visa she holds. She said that if she starts to take medication for hypertension and/or depression she would have to continue taking it, which would be expensive so she hasn’t started taking those medications.
Malaysia is reported to have a well-established universal health care system which is accessible to most of the population, such as Malaysian citizens.[2] Healthcare for Malaysians is reported to be generally affordable, with in-country sources informing DFAT that Malaysians can pay as little as MYR 1 (AUD 0.33) for a doctor’s visit and MYR 1.5 (AUD 0.50) per day to stay in a hospital.[3] In public healthcare facilities, medications are fully subsidised by the government under the Ministry of Health (MOH) and in MOH facilities, medications are dispensed at zero cost to patients, regardless of their socioeconomic status.[4]
[2] Department of Foreign Affairs and Trade, Country Information Report – Malaysia (24 June 2024) (DFAT Report), paras 2.11, 2.12.
[3] DFAT Report, para 2.11.
[4] Kien Seang Kwong, Yai Wen Choo, Huey Miin Cheah, Power of 1 Malaysian Ringgit: A Low-Cost Prescription Cost-Sharing Model in Malaysia, Value in Health Regional Issues, Volume 21, 2020, Pages 245-251, ISSN 2212-1099In relation to mental health services, there is reported to be a gap in Malaysia’s otherwise strong healthcare system, however, significant stigma attached to mental health issues is declining in urban areas in Malaysia.[5] Treatment for mental health may be hard to access, and expensive.[6] Attempting suicide was decriminalised in May 2023.[7]
[5] DFAT Report, para 2.14.
[6] DFAT Report, para 2.14.
[7] DFAT Report, para 2.14.
In relation to the possibility of obtaining treatment in Malaysia for her conditions, she said that because she is Chinese, she would be required to be in a queue for treatment. She said that in Malaysia there is a high suicide rate because of the wait for treatment. She referred to the situation for her cousin who died after leaving hospital because she couldn’t afford any more treatment. She said that on the outside, the system may look fine but there is a lot of racial discrimination.
I have considered the applicant’s response. However, based on the available country information, I find that the applicant will be able to obtain treatment for her diabetes and hypertension, including in a public healthcare setting. As a Malaysian citizen, there is no information to suggest that she would be denied treatment because of her ethnicity or for any reason or that she would be unable to access treatment for these conditions.
While it may be difficult for the applicant to access psychiatric care in Malaysia if required, there is no information to suggest that she would be denied treatment because of her Chinese ethnicity or for any reason, or that there is an intention to harm her or cause significant harm. Rather there is a gap in funding in the Malaysian healthcare system which affects the majority of the population. Despite this, I find that she would be able to access medications for her mental health in the public system, if she elects to do so which may mean she avoids low moods and/or suicidal ideation. I note that she is not currently taking any medication for her mental health in Australia.
I am not satisfied that the applicant faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future in Malaysia because of her health conditions. While it may be difficult for the applicant to return to Malaysia, I find that she would be able to access treatment for her conditions. Based on the available information, it may be cheaper for the applicant to obtain pharmaceutical treatments in Malaysia, as a Malaysian citizen, when compared to obtaining treatment as a private patient in Australia.
Chinese-Malaysian
The applicant has claimed that there is racial discrimination in Malaysia against Chinese Malaysians. She referred to Chinese people being yelled at in hospital and Malays being treated nicely, when she was giving birth to her son in [year]. She said that she has done many jobs in Malaysia, such as working as [an occupation], and that she has been stopped by police and had to pay bribes even if she hadn’t done anything wrong.
There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians.[8] DFAT reports that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector.[9]
[8] DFAT Report, para 3.12.
[9] DFAT Report, para 3.15.
Section 5J(5) provides, for the purposes of s 5J(4), 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. This is a non-exhaustive list of instances of serious harm.
In terms of the complementary protection criterion, ‘significant harm’ is exhaustively defined in s 36(2A): s 5(1). 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. There is no suggestion that the applicant would be arbitrarily deprived of her life, subjected to the death penalty or tortured because she is Chinese Malaysian.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
Having regard to the non-exhaustive list of instances of serious harm, and the definition of significant harm, I do not accept that low levels of discrimination as outlined in the country information, or the incidents as put forward by the applicant such as being required to pay bribes, amounts to serious or significant harm. The applicant did not refer to not getting job opportunities because she is Chinese and she has been employed in the past in Malaysia, noting that she said she has had many jobs.
I accept that it is frustrating to see what may be perceived as special treatment for other Malaysian citizens in Malaysia. I accept that there may be, on occasion, friction between ethnic groups in Malaysia, which may manifest in perceived or actual poor treatment of people of a particular ethnic group in certain situations. However, I do not accept that the applicant’s experiences in Malaysia as claimed, including paying a bribe to a Malay police officer when she was [an occupation], amounted to serious or significant harm and do not accept that such incidents, if they were to occur in the future, would amount to serious or significant harm. I do not accept that she would face a real chance of serious harm, or a real risk of significant harm, on the basis of being a Chinese Malaysian now or in the reasonably foreseeable future.
Situation in Malaysia
The applicant has a history of suicide ideation. She was able to discuss her medical history with me; at times she became emotional. I accept that the applicant has suffered significantly throughout her life. The applicant’s second husband, [Mr A], passed away in January [2021]. I accept that this contributed to the applicant’s mental health issues, although prior to this, she has reported suicidal ideation when she was living with her first husband in Malaysia prior to coming to Australia. Two of her sisters who were close to her have also passed away in recent years.
In relation to the applicant’s mental health and any potential self-harm if she were to return to Malaysia, I find that this would not amount to persecution by another person for one or more of the five refugee reasons (race, religion, nationality, particular social group, political opinion).[10] Further, in terms of the complementary protection criterion, the descriptions of the types of significant harm in s 36(2A) are passively worded, for example, referring to the non-citizen being arbitrarily deprived of his or her life, the death penalty being carried out on the non-citizen, and harm that the non-citizen will be subjected to. The Federal Court has confirmed that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[11] This means that significant harm does not encompass self-harm, or harm arising from mental illness.[12] As noted above, I find that the applicant will be able to obtain treatment, in the form of medication, for her mental health in Malaysia. I find that any mental health condition or potential self-harm that the applicant may experience, if she were to return to Malaysia, would not amount to significant harm.
[10] In CSV15 v MIBP [2018] FCA 699 at [30]-[31], the Federal Court held that s 36(2)(a) is concerned with persecution of an applicant by other persons for Convention or nexus reasons and also that it does not encompass the harm an applicant may suffer as a result of an illness arising on return to their receiving country.
[11] GLD18 v MHA [2020] FCAFC 2 at [37]
[12] CHB16 v MIBP [2019] FCA 1089 at [65]–[68]; and CSV15 v MIBP [2018] FCA 699 at [34].
The applicant raised in her statutory declaration that if she returned to Malaysia, she may have to become a beggar. At the hearing, she said that it was not possible to beg on the streets in Malaysia. While the applicant earlier claimed that her family hate her, she reported being close to two of her sisters who passed away and that she is in contact with her sister #11 in Malaysia and her son, who manages her finances and gives her $1000 a month for expenses. She is a trained [occupation] and has worked in a number of jobs. Accordingly, given these considerations, including her connections to some family members, her son’s support and her savings in Australia, I do not accept that she would have to become a beggar, or that she would be homeless in Malaysia. I have considered her age, and while I accept some employers in Malaysia may prefer younger workers that it may also be difficult to work because of her medical conditions, she has claimed that she wants to work in Australia. Given her determination and work history, I find that she would be able to find employment in Malaysia if she chooses to do so. I have found that she will be able to manage her medical conditions and do not accept that they will prevent her from being able to work. I have considered her situation wholistically and do not accept that her living situation and financial situation would amount to serious or significant harm, and find that she would be able to subsist in Malaysia given her skills, work history in Malaysia and family connection. In addition, in relation to her living situation and financial situation in Malaysia, there is no indication that she would be the subject of any harm for a refugee reason in s 5J(1)(a) or that any person would inflict harm on her, such that she would suffer significant harm. I do not accept that she faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future in relation to her potential living situation and financial situation in Malaysia.
I have also considered that the applicant faced emotional turmoil and hardship in Malaysia (and that she claims she would self-harm at the place where her first husband is buried if she returned). I accept that this is a reason why she wishes to stay in Australia because of her difficult upbringing and past in Malaysia. I note however that she has also faced significant difficulties in Australia, including when she worked at the [shop] and was not paid wages and when her second husband, [Mr A], passed away. The harm has to be directed at the applicant for one or more of the five refugee reasons in s 5J(1)(a), and in terms of the complementary protection assessment, ‘significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). The definitions of ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ refer to ‘an act or omission’, which means that only an action or a failure to act would fall within the definition, which may be distinguished from a consequence of an act or an omission. I accept that the applicant would prefer to remain in Australia, and that she experienced a difficult life in Malaysia, and that returning to Malaysia now may be difficult for her. However, the emotional situation, where she has suffered previous emotional turmoil in Malaysia, would not be directed at her for any of the five refugee reasons in s 5J(1)(a), and I also do not accept that it amounts to serious harm. The complementary protection criterion is a forward-looking one of reasonable foreseeability and the act or omission (from which the relevant harm arises, i.e., her previous suffering from her childhood and when her first husband was alive) must take place, or continue to take place, in the future. An act or omission that is wholly in the past is not capable of engaging the complementary protection criterion.[13] Accordingly, I find that the applicant’s difficult past in Malaysia and any emotional difficulties resulting from it would not amount to significant harm.
[13] BVT20 v MICMSMA (2020) 283 FCR 97 at [86].
The applicant raised that she was concerned that she would be fined or charged in Malaysia because she has not voted. I explained to the applicant that while voting is compulsory in Australia, there is no information to indicate that voting is mandatory in Malaysia and that she would face harm on this basis.[14] I do not accept that the applicant would face a real chance or real risk of any harm in relation to not having voted in previous elections in Malaysia or not voting in future elections in Malaysia.
Loan
[14] See e.g., Appendix G – Countries with compulsory voting – Parliament of Australia ( where Malaysia is not listed as a country with mandatory voting or where not voting leads to any official action; Compulsory Voting | International IDEA ( accessed 29 October 2024.
The applicant stated she has paid off most of her debts, and that there is a debt remaining to the ‘ah long’. She did not provide further details about this loan and was not aware if the loan had increased but speculated that it may have. It has been over seven years since the applicant was in Malaysia and she has not made contact with the loan shark to discharge the debt, and they have not contacted her. While she has referred to threats from loan sharks in the past, including red paint being used on her house, there is no evidence to suggest that the loan shark is pursuing her, or anyone connected to her, now or that they remain interested in her debt. Instead, she has focused on paying off debts to family and friends. Although she noted they may target her if she is in Malaysia, I find that her conduct indicates that she is not particularly concerned about the loan shark.
The applicant has funds which are held by her son. In her statutory declaration, she stated that she received $40,000 from [Mr A]’s estate, however at the hearing she said that it was $200,000 after all expenses were paid. Towards the end of the hearing, she said she thought there was $20,000 to $30,000 remaining but her son kept the money because she didn’t trust herself with it.
While I accept that the applicant took out loans with a loan shark to support her first husband’s medical treatment, I find that the loan shark is no longer interested in pursuing the applicant. She has not been contacted by the loan shark in over seven years and has not taken any steps to complete the payments, indicating she is not concerned about the debt. It is also speculative as to whether the loan shark would be able to locate her in Malaysia given the passage of time. Notwithstanding this finding, if the loan shark approached her and required her to pay off the debt, she has funds available to her. While she was sure of the exact figure, I find that it is about $30,000 which is held by her son, or the equivalent of 90,000 Malaysian ringgit.[15] While she claimed to not be close to her son, her son has been managing her finances, including giving her money to live each month. He is also working in Australia. I find that the applicant and her son would discharge the debt if required, including if the loan shark had applied interest to the loan (however, the applicant was unable to specify with certainty an amount or provide an interest rate).
[15] 30,000 AUD to MYR - Australian Dollars to Malaysian Ringgits Exchange Rate ( (accessed 29 October 2024).
Accordingly, as I do not accept that the loan shark is interested in pursuing the applicant, and even if the loan shark has an adverse interest in the applicant, I find that she and her son would discharge the debt. I do not accept that the applicant faces a real chance of serious harm, or real risk of significant harm, now or in the reasonably foreseeable future in relation to any debts in Malaysia.
Applicant’s experiences in Australia
The applicant has been subjected to extremely poor treatment while she was working in Australia. These issues are discussed below in relation to my recommendation that the matter be referred to the Department to be brought to the Minister’s attention, for consideration under s 351 of the Act. The person who treated the applicant poorly at the [shop] and withheld her salary is reported to have been from [Country 1] and is now deceased. The applicant was assisting the AFP in relation to the investigation. I do not consider that these matters give rise to a claim that she would face serious or significant harm now or in the reasonably foreseeable future in Malaysia.
Cumulative assessment
The applicant presented as a woman who has suffered significantly throughout her life, including during her childhood until the present day. People close to her, such as her two husbands and two of her sisters, have passed away and she reports being estranged from her daughter. She said that out of her siblings, she is not successful. She has health concerns, including diabetes which she is managing with medication, and has a history of suicidal ideation.
I have to consider whether the applicant satisfies the ‘refugee’ criterion, or the ‘complementary protection’ criterion. I have found that the applicant will be able to obtain medication for her medical conditions in Malaysia, that she would be able to subsist if she returned to Malaysia, and I do not accept that she faces a real chance or real risk of harm because of a loan. When considering her claims individually and cumulatively, I do not accept that she would face a real chance of serious harm or a real risk of significant harm now or in the reasonably foreseeable future in Malaysia.
Despite this finding, I acknowledge that her life in Malaysia would present significant difficulties, given her personal history and characteristics, and that there may be a risk of self-harm. She was in a relationship with an Australian citizen, which may have, if she had received immigration advice prior to his death, resulted in her applying for and being granted a partner visa. She has also provided assistance to the AFP in a criminal investigation which may have placed her at personal risk. For these reasons, I consider that the case should be referred to the Department to be brought to the Minister’s attention. This is discussed in more detail below.
Conclusion
I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). I am 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.
MINISTERIAL INTERVENTION
I have considered the ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’.
The guidelines set out the cases which have unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of the intervention powers. Examples of unique or exceptional circumstances in the guidelines include compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
The applicant was in a relationship with an Australian citizen for over two years. She met [Mr A] when he was a customer at the [shop]. He assisted her obtain her unpaid wages from the [shop]. After she left the shop, she said she lived with [Mr A] for about six weeks in January 2018. She said that he was a gentleman during this time, and they were not in an intimate relationship during this period, and were friends. She then got a job at another [shop] in [City 2] and said that it was a ‘proper’ [shop] where was paid properly and not required to perform any extra services. She said she is a good [worker] and is trained. She and [Mr A] entered into a relationship after she had moved to [City 2], and she said she would visit him on weekends, and they would go fishing and camping. They married in January 2019, and she said they had a good relationship. She continued to work in [City 2]. During this period, she may have been able to apply for a partner visa. She said she was devastated when he [died]. It appears that if she had received appropriate immigration advice, she may have been able to apply for a partner visa prior to his death.
The applicant was subjected to extremely poor treatment when she worked at a [shop]. She said that during those months that she was working for her boss, she was not given access to the key to house and could not go to the toilet without speaking to her boss. As she didn’t have a key, she had to follow her around to access the house. She said that at the time, she didn’t know anybody in [City 1], and so when she hit her, she couldn’t resist. Her salary was also unpaid, which meant that she was effectively a slave.
The applicant was identified in 2021 as a suspected victim of human trafficking in relation to her treatment at the [shop] by the AFP. She said that she actively participated in the investigation and attended many interviews at the AFP headquarters in Melbourne.
The AFP has reported that on 1 February 2021, [a] Human Trafficking Team [conducted] a victim assessment where the applicant was identified as a suspected victim of human trafficking and was referred to the Support for Trafficked People Program. The AFP also supported a Bridging visa F application which allowed the applicant to remain in Australia while participating in the criminal justice process. Throughout the investigation, they report that the applicant actively participated in the criminal justice process, including participating in an Evidence in Chief Interview.
On 15 September 2021, the AFP report that the [team] was notified that the alleged offender (the applicant’s boss at the [shop]) was deceased. [The team] could not progress the investigation further as prosecution would not be possible due to no co-offenders being identified. They report that the applicant was actively participating in the criminal justice process until this point.
The applicant said that if she is allowed to, she would like to volunteer to provide [services] to elderly people in retirement homes in Australia, but she was told that she does not have a certificate to work with elderly people and cannot complete the required course because of her visa condition. She has acquaintances in Australia, and moves around Australia. She said she is currently staying near an acquaintance in a Melbourne suburb who can assist her read documents in English.
The applicant has had a number of very difficult experiences in Malaysia and Australia as outlined in this decision. She has suffered suicide ideation, most recently earlier in 2024. Given the applicant’s previous suicide attempts, her statements that if she is returned to Malaysia she would suicide near where her first husband is buried and that her wish is for her remains to be placed with her second husband in Australia, where there is space reserved for her, there may be a situation where if the applicant is returned to Malaysia or is informed that she is required to return to Malaysia, her risk of suicidal ideation may increase.
Given the applicant’s relationship with, and marriage to, an Australian citizen, her poor treatment in Australia including being subjected to slavery-like conditions, cooperation with the AFP in a criminal matter and the matter outlined in the above paragraph, I consider that this case should be referred to the Department to be brought to the Minister’s attention.
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.
…
( accessed 29 October 2024.
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