1908001 (Refugee)

[2024] AATA 3520

1908001 (Refugee) [2024] AATA 3520 (2 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908001

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jennifer Ermert

DATE:2 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 July 2024 at 5:40pm

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – race – Malay Muslim woman – ex-husband’s drug addiction and drug use – economic problem – fear of harm from ex-husband – applicant had provided inconsistent and contradictory information – applicant does not have a well-founded fear of persecution –credibility concerns –– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65,499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
Guo v MIEA (1996) 64 FCR 151

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 24 January 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations, nor is she a member of the same family unit as such a person who holds a protection visa of the same class as that applied for by the applicant.  

3. The applicant appeared before the Tribunal on 10 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because she is either a refugee or a person who meets the complementary protection criterion, or whether she is a member of the same family unit as such a person, and that person holds a protection visa of the same class as that applied for by the applicant.  

Identity and country of nationality

1. There is not a copy of the applicant’s identity document such as her passport on her departmental file.  The delegate’s decision record refusing her protection visa application indicates that the applicant provided her passport for inspection at the time the Department collected her personal identifiers.  The delegate was satisfied of the applicant’s identity on the basis of that inspection and from checks conducted on the Department’s relevant systems, and found the applicant to be a citizen of Malaysia. 

2. Although the Tribunal does not have the benefit of a copy of the applicant’s identity document on her departmental file, the Tribunal was able to sight the original of her Malaysian passport at the hearing, a copy of the biodata page of which was also provided to the Tribunal.  On the basis of this, the Tribunal is also satisfied of the applicant’s identity, and that she is a citizen of Malaysia as claimed.

3. The Tribunal finds the applicant’s nationality is Malaysia for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.   

Personal background and immigration history

1. The applicant is a [age] year old Malay Muslim woman.  She was born in Kelantan, Malaysia to a family of 4 children.  At the hearing, she gave evidence that her parents and siblings are still in Kelantan and that she contacts them weekly.

2. After completing her secondary school education, the applicant worked [at] a [workplace] near where her family lived.  Since coming to Australia, the applicant has had a variety of jobs including working on [workplaces]. 

3. The applicant married her first husband (hereafter referred to as her ‘ex-husband’) in March 2016 and they have a son together.  However, they have since divorced.  

4. On [date] September 2018, the applicant arrived in Australia on a Class UD Subclass 601 Electronic Travel Authority, and she has not departed Australia since.  On 25 November 2018, the applicant made an application for the grant of a Class XA Subclass 866 protection visa, however it was determined to be invalid on 8 January 2019.   The reason for the invalidity determination is unclear as it was not specified in the delegate’s decision record, and the applicant did not know why when asked.   

5. On 24 January 2019, the applicant made a valid application for the grant of a Class XA Subclass 866 protection visa.  It is the refusal of that application which is the subject of this review.

6. The Tribunal accepts each of the above to be true in the absence of contrary evidence.

Protection claims

1. The claims included in the applicant’s protection visa application, which she gave evidence she completed herself without assistance at the hearing, are that she came to Australia because she had financial problems and needed to pay off her debt before returning to Malaysia.  If she returned to Malaysia, she would be jobless, and as a single mother with child she has to try to survive.  She has not otherwise experienced harm in Malaysia. 

Evidence at hearing

1. The applicant claimed she came to Australia because she was running away from her ex-husband and because she had economic problems.  When asked why she was running away from her ex-husband, the applicant claimed her family told her to run away because her ex-husband had drug issues.  The Tribunal asked her what the drug issues were, to which she responded she was not sure; her father had told her about it because her ex-husband used to work for her father.  The applicant claimed her father told her that her ex-husband was always ‘dreamy’ at work and that he was selling ketum[1] to people.  The Tribunal asked how her father knew this, the applicant claimed other people who worked for her father reported her ex-husband, and that there was also CCTV footage. 

   [1] KETUM IS A PLANT IN THE COFFEE FAMILY WHICH IS INDIGENOUS TO SEVERAL COUNTRIES SUCH AS THAILAND, INDONESIA, MALAYSIA, MYANMAR AND PAPUA NEW GUINEA.  TRADITIONALLY USED IN HERBAL MEDICINE TO EXPEL WIND AND TREAT ILLNESSES SUCH AS BACK PAIN, IT HAS BEEN MISUSED AND IS CONSIDERED A NARCOTIC DRUG.  SEE FOR EXAMPLE ARTICLE BY SITI FARHANA SHEIKH YAHYA, ‘MALAYSIA'S 'KETUM' PHENOMENON AND WHY IT IS SO POPULAR’, ASTRO AWANI, 3 DECEMBER 2020.

2. The applicant provided to the Tribunal a copy of the employment screening and police search report for her ex-husband purportedly conducted by, or at the initiation of, her father’s company.  The report shows that her ex-husband has records dating back to 2012 for alleged offences under the Dangerous Drugs Act and the Poisons Act.  It also shows that her ex-husband was found and tested positive for meth during a police raid at a house in Ketantan where ketum and other drugs were found.

3. In response to the Tribunal’s question whether she knew about her ex-husband’s drug issues before her father told her, the applicant said ‘Yes’.  She knew because her ex-husband and his siblings were always ‘drunk’ from ketum in the house, which caused them to ‘not know what they were doing’.  The applicant claimed she was unaware of her ex-husband’s drug habits before they married, and that when she found out she and her ex-husband fought. 

4. The applicant gave evidence to the effect that despite her ex-husband’s drug addiction and drug use, she did not initially want to divorce him until he began threatening her family.  Specifically, the applicant claimed her ex-husband went to her father’s office to fight her father physically, and although he did not in fact do this, he threatened her father and told her father not to get involved in his affairs.  He also asked her father for money, which the applicant claimed her father gave and has done until this day ‘out of sympathy’ because her ex-husband became jobless after he was fired from her father’s work and because their son lives with him. 

5. When questioned by the Tribunal, the applicant said that perhaps her father would not have given her ex-husband any money if it was not for her son, but she was not sure.  The applicant claimed that although her son lives with her ex-husband, he would often spent time in the village with her family, e.g. during school holidays.  When that happens, the applicant’s mother would let her know and she would call home so that she could speak with her son.

6. With respect to communications with her ex-husband, the applicant gave evidence that he has contacted her in Australia and asked for money, but she has blocked him.  The applicant claimed the last time they spoke was a few months after she got married in 2022,[2] during which her ex-husband asked her for money to register their son’s birth.  The applicant claimed despite giving her ex-husband a few thousand Ringgits, the money ‘disappeared’ because her lawyer, who she had engaged to manage the registration of her divorce from her ex-husband, advised her that her ex-husband’s name still does not appear on their son’s birth record.  The applicant claimed that prior to that, she also argued with her ex-husband several times over their son and over money.

   [2] The copy of the marriage certificate provided by the applicant post hearing indicates the applicant in fact married her current husband on 24 December 2023. 

7. The Tribunal and the applicant discussed the circumstances surrounding her divorce.  In essence, the applicant’s evidence was that following a big fight with her ex-husband over drugs and over his repeated requests to her family for money, she forced him to divorce her by running away from home back to her family’s house and refusing to return with him even though he went to pick her up every day.  This went on for a few months during which her ex-husband repeatedly promised to change, but her family did not believe him and advised the applicant to leave Malaysia to resolve the issue.  In 2020, her ex-husband finally agreed to the divorce by stating thus, but he refused to have it formally registered, so she hired a lawyer to manage it for her and gave her lawyer the WhatsApp recording of her ex-husband’s statement as evidence.  

8. In response to the Tribunal’s question regarding what she believed would happen to her if she returned to Malaysia, the applicant claimed her ex-husband would carry on harassing her for money, and that his siblings would beat her and her current husband up.  When asked why she believed this, the applicant claimed her ex-husband has threatened her because it is his intention to get back together with her, and that he told her this before she married her current husband, after he allegedly found out she was dating her current husband via her social media [posts].  The Tribunal asked if she has reported her ex-husband’s threats to the police, the applicant claimed she has not because her ex-husband only began threatening her after she came to Australia.

9. With respect to state protection, the applicant claimed that she does not believe the police would protect her from possible harm from her ex-husband.  The police in Malaysia do not take their job seriously, and although her ex-husband was caught a few times in relation to his drug use, the police just let him go.  She also claimed his family is connected to the police and that she saw the police come over to the house where she lived with her ex-husband and his siblings and that the police had drugs with them.  The applicant further claimed that although her ex-husband had threatened her family, they have not reported him to the police because they are worried about her son who she claimed cannot be separated from her ex-husband or he cannot sleep.

10. The Tribunal asked the applicant whether it was possible for her to relocate as a means of avoiding possible harm from her ex-husband.  The applicant claimed she had previously moved to Kuantan in early 2018, but her ex-husband’s brother managed to find her, which resulted in her ex-husband turning up at her rental accommodation.  She believes the same thing would happen even if she moved to more densely populated areas of Malaysia, because her ex-husband’s older brother who she believes is the one with the police connection has told her so.

11. The Tribunal asked the applicant what economic harm she feared if she returned to Malaysia, given economic problem was one of the reasons she gave for running away from Malaysia. The applicant claimed there were few job opportunities in Kelantan, and even though she had tried looking for jobs elsewhere she still did not get any opportunity because most employers do not take women with children.  The applicant claimed that if she returned to Malaysia she would likely experience financial pressure, as many of her cousins, both those with children and those without, are also jobless.

12. Finally, the applicant claimed that she also fears possible harm to her second child (i.e. her first one with her current husband) because he was conceived out of wedlock.  The applicant claimed that her son would be unable to have her husband’s name because of this, even though she does not fear harm to herself.

13. Subsequent to the hearing, the applicant provided a copy of her divorce certificate, which indicates she was formally divorced from her ex-husband on 11 August 2022 and the registration of the same took place on 30 November 2022. 

REASONS FOR THE DECISION

1. For the reasons that follow, the Tribunal has concluded that the decision to refuse the applicant a protection visa should be affirmed because the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

Assessment of refugee status

1. To be eligible for the grant of a protection visa on the basis of being a refugee, the applicant must satisfy the Tribunal that she has a well-founded fear of persecution in Malaysia, and owing to that fear, is unable or unwilling to avail herself of the protection of Malaysia.  This requires the Tribunal to be satisfied there is a real chance that the applicant would be seriously harmed for reasons of race, religion, nationality, membership of a particular social group or political opinion if she returned to Malaysia.

2. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. The starting point in assessing whether the applicant’s protection claims demonstrate there is a real chance she would suffer serious harm in Malaysia is to establish the credibility of those claims.  The Tribunal is aware of the importance of adopting a reasonable approach in making credibility findings. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

   “…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”

4. The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 2019) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

5. When assessing protection claims, it is important to bear in mind the difficulties often faced by applicants. The benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all of their claims.  However, this does not mean the Tribunal is required to accept uncritically any or all of the allegations made by an applicant.  Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

6. The Tribunal has considered the applicant’s claims and evidence at hearing.  The Tribunal accepts that her ex-husband is involved in drugs and that this was not something which the applicant knew about before she married her ex-husband.  The Tribunal accepts that her ex-husband’s drug use caused him to appear ‘dreamy’ at work and that his purported sale of ketum to others was both captured on CCTV and reported to the applicant’s father as a manager of the company.  The Tribunal accepts that her ex-husband was fired from his job, and that a screening and police report check was conducted on him which confirmed he is known to the police for drug-related offences and that he had previously been caught with drugs in his system during a police raid.   The Tribunal also accepts that the applicant fought with her ex-husband over his drug use and that she was urged by her family to leave him. 

1. However, the Tribunal does not accept the applicant’s other claims and evidence because the Tribunal finds them to be either contradictory and/or implausible in many material aspects.  For instance, the applicant initially claimed her family told her to run away because her ex-husband had drug issues, that she was ‘not sure’ what the drug issues were, and that her father had told her about what happened at work (her ex-husband’s ‘dreamy’ demeanour at work and that he was caught selling ketum etc.).  However, she then proceeded to give contrary evidence that she knew about her husband’s drug issues before her father told her because he and his siblings were always ‘drunk’ from ketum in the house which caused them not to know what they were doing.  

2. In another instance, the applicant claimed her ex-husband went to her father’s office to fight her father physically which the Tribunal does not find plausible.  The applicant also claimed her father gave her ex-husband money instead as demanded and that he has continued to do so until now ‘out of sympathy’ because of her ex-husband’s joblessness and for the sake of her son who remains living with her ex-husband.  Yet, the applicant later claimed her ex-husband threatened her family with physical violence and that her father has given her ex-husband money every time this occurred, which is why nothing has in fact happened to her family despite the threats. 

3. Whilst the Tribunal acknowledges it is conceivable that the applicant’s father could have given money to her ex-husband over the years due to simultaneously held sentiments of sympathy and fear of the threatened harm, on balance the Tribunal does not accept this as a reasonable explanation, having regard to the applicant’s response when asked whether her father would have given her ex-husband any money if it was not for her son, that perhaps her father would not have but ‘she was not sure’.  If the threats of harm from her ex-husband are indeed one of the known reasons her father has been giving her ex-husband money, the Tribunal considers that a more natural and logical response from the applicant would have been that her father would give her ex-husband money regardless of her son due to the threats of physical harm against her family, rather than the response she in fact gave which the Tribunal finds inexplicable.   

4. In respect to the applicant’s claims concerning her fear that her ex-husband would continue harassing her for money and that he and his siblings would beat up her and her current husband upon return to Malaysia because he wants to get back together with her, the Tribunal accepts it is possible that her ex-husband could harass her for money and that he might leverage their son to do so, but the Tribunal does not accept he would, individually or together with his siblings, beat her and her current husband up.  The applicant’s ex-husband does not know her current husband, and he has no plausible motive to harm her current husband other than the fact he is married to her which the Tribunal does not accept. 

5. As for the ex-husband’s alleged intention to get back together with the applicant, the Tribunal cannot see how beating her up would achieve that goal, and the Tribunal does not accept the hypothesis that the ex-husband is a controlling and manipulative wife-beater who would beat up the applicant to get her back, as sometimes happen in domestic and family violence situations involving intimate partners.  If the applicant’s ex-husband would resort to physical violence in order to get her back, he would have done so when she ran away from their home back to her family’s house after their argument.  The fact that the applicant’s ex-husband has not physically harmed her at all in the past gives the Tribunal no reason to believe that he would now do so.

6. The Tribunal has also considered, and does not believe, the applicant’s claim that her family have refrained from reporting her ex-husband to the police despite his threats to harm them because of her son who cannot be separated from her ex-husband or he cannot sleep.  Given her son reportedly spends time with her family away from her ex-husband on a regular basis such as during school holidays, the Tribunal does not accept the claim that her son cannot be separated from her ex-husband, or that her family have concerns for her son’s separation anxiety which prevents them from reporting her ex-husband for threating them. 

7. The Tribunal has also considered the applicant’s claimed experience of relocation to Kuantan where she was allegedly found by one of her ex-husband’s brothers as the basis for her claim that it is futile for her to relocate as a means of avoiding the risk of harm from her ex-husband and his siblings.  The Tribunal accepts the applicant may have moved briefly to Kuantan in early 2018, but in the absence of substantive evidence that she moved to Kuantan to avoid her ex-husband and that she was found despite keeping her movement and location secret from her ex-husband, the Tribunal is unable to be satisfied that it demonstrates the futility of relocation.  In event, the Tribunal would not have accepted a claim that evasion of harm from her ex-husband was the reason for her move to Kuantan, given the applicant’s evidence that her ex-husband only began threatening her after she came to Australia.

8. For all the reasons discussed above, the Tribunal has serious concerns about the credibility of the applicant’s claims and evidence.  In other words, although the Tribunal accepts the applicant’s ex-husband is a drug user and that his drug use and addiction is the root cause of their separation and eventual divorce, the Tribunal does not accept that her ex-husband has threatened to beat her and her current husband up if they returned to Malaysia, nor does the Tribunal accept that her ex-husband has threatened her family with physical violence.  It follows, therefore, that the Tribunal is not satisfied there is a real chance that the applicant would be seriously harmed by her ex-husband and/or his siblings if she returned to Malaysia, whether now or in the reasonably foreseeable future.

9. Next, the Tribunal will turn to the applicant’s claims with respect to fear of economic harm.  The latest DFAT Country Information Report for Malaysia dated 24 June 2024 reports:

   “The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2022, real GDP growth was 8.7 per cent and per capita GDP was USD 11,993 (AUD 18,000). Since Independence, Malaysia has transformed from a commodity-based economy focused on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia has also developed its service sector, which now contributes half the country’s economic growth.

   Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Households living below the national poverty line of MYR 2,589 (AUD 864) fell from over 50 per cent in the 1960s, to less than less than 6.2 per cent in 2022. Persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population (known as the ‘B40’) who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states.

   The COVID-19 pandemic had a major economic impact on Malaysia, particularly on the most vulnerable. Poverty rates rose and growth fell due to the COVID-19 pandemic in 2020 and 2021, although the economy has since recovered. Ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt.

   In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour. In 2023, the Department of Statistics Malaysia estimated there were 2.2 million documented migrant workers in Malaysia. Unofficial estimates of undocumented or irregular migrants vary considerably. In 2023, the IOM estimated there were also a further 1.2 to 3.5 million undocumented migrants living in the country. According to the US Department of Labour, migrant workers in Malaysia are frequently subject to abuses ranging from excessive recruitment fees to serious violations of terms and conditions of their employment.”[3]

   [3] DFAT Country Information Report Malaysia (24 June 2024), Department of Foreign Affairs and Trade, page 9, [2.7] – [2.8].

10. While there are undoubtedly challenges such as inflation and cost of living pressures, the challenges are no different to those which exist in Australia, and the report indicates that the Malaysian economy has recovered since the COVID-19 pandemic.  As for the applicant’s claim based on her past difficulty in obtaining employment as a woman with children, the Tribunal acknowledges it is possible – in fact there is a real chance – that the applicant could experience similar difficulty if she returned to Malaysia, however the Tribunal does not accept that it amounts to serious harm. 

11. For a feared harm to constitute ‘serious harm’ within the meaning of s 5J(5) of the Act, it must have the necessary quality of being sufficiently severe as to involve a denial of or a significant interference to the person’s fundamental rights or freedoms.  Whether a claimed harm meets such threshold depends not only on whether there is a relevant violation of rights, but requires a qualitative assessment of the seriousness of the harm suffered as a result of the violation.[4] 

    [4] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 at [71]; SZTEQ v MIBP (2015) 229 FCR 497 at [66]-[70]. These cases considered the statutory wording of s 91R(2) as it then was and which is the equivalent of present-day s 5J(5). See also DJO16 v MIBP [2017] FCCA 944 at [24]-[25].

12. The applicant has not provided any evidence to show that if she returned to Malaysia, she would suffer financial pressure and economic hardship of such gravity, or that she would be denied the capacity to earn a livelihood of any kind, that it would threaten her capacity to subsist.  A threat to subsistence as referred to in ss 5J(5)(d)–(f) must be at a level that challenges the applicant’s ability to continue to exist or remain in being.[5]  In the absence of evidence that the economic and employment situations in Malaysia are so dire as to threaten the applicant’s capacity to subsist by challenging her ability to continue to exist or remain in being – in fact the DFAT Country Information Report suggests the opposite – the Tribunal finds the applicant’s claimed fear in relation to her prospect of finding employment on return to Malaysia is not ‘serious harm’ within the meaning of s 5J(5). 

    [5] SZBQJ v MIAC [2005] FCA 143 at [11]; SZIGC v MIAC [2007] FCA 1725 at [23].

13. Finally, the tribunal will deal with the applicant’s claimed fear that her second child (i.e. her first one with her current husband) would be harmed or discriminated against because he was conceived out of wedlock, including being unable to have her husband’s name. 

14. Section 5J(4)(b) of the Act provides that if a person fears prosecution for one or more of the reasons mentioned in s 5J(1)(a), i.e. race, religion, nationality, membership of a particular social group or political opinion, the persecution must involve serious harm to the person.  Given the applicant’s claimed fear relates to her son rather than herself, s 5J(4)(b) of the Act is not met.  Therefore, even if there is a real chance that the applicant’s son would suffer discrimination in Malaysia (which the Tribunal has not assessed and reached a conclusion on) because he was conceived before the applicant’s marriage to her husband, the feared discrimination is irrelevant and does not bear on the Tribunal’s assessment as to whether the applicant herself meets the definition of ‘refugee’.

15. As the applicant does not have a well-founded fear of persecution in Malaysia and does not meet the definition of ‘refugee’, she does not meet s 36(2)(a) of the Act.

Complementary protection assessment

1. Having found the applicant is not a refugee and is not a person in respect of whom Australia has protection obligations for that reason, the Tribunal has considered whether the applicant’s circumstances are such as to give the Tribunal substantial grounds to believe that there is a real risk she would suffer significant harm as a necessary and foreseeable consequence of her being removed from Australia to Malaysia.

2. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).

3. For the same reasons that the Tribunal is not satisfied there is a real chance that the applicant would suffer serious harm from her ex-husband and/or his siblings in the reasonably foreseeable future by being beaten up if she returned to Malaysia, the Tribunal is not satisfied there is a real risk that she would suffer significant harm from her ex-husband and/or his siblings as a necessary and foreseeable consequence of her removal to Malaysia. 

4. As for the applicant’s claimed fear of economic harm arising from difficulty in finding employment, the Tribunal does not accept that such difficulty – although possible – is ‘significant harm’ as defined in s 36(2A) of the Act.  The applicant is not being deprived of her life, having the death penalty carried out on her, or tortured.  Nor is difficulty in finding employment, as deflating and stressful as it can be, cruel or inhuman treatment or punishment, or degrading treatment or punishment. 

5. Last but not least, with respect to the applicant’s claim in relation to her son with her current husband who was conceived before their marriage, the Tribunal notes that similar to the ‘refugee’ assessment, an assessment of the real risk of significant harm for the purposes of complementary protection must relate to the non-citizen who is the protection visa applicant rather than a third person.  As the applicant’s fears relate to her son rather than her personally, those fears are not relevant considerations for the purposes of assessing whether the applicant meets the complementary protection criterion in s 36(2)(aa).

6. In conclusion, the Tribunal is not satisfied the applicant is a person who meets the complementary protection criterion, for all the reasons discussed.  She is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act. 

Other criteria – member of family unit

1. Finally, there is no evidence before the Tribunal to suggest that the applicant is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicant. Therefore, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or (c) of the Act.  

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Jennifer Ermert
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.

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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.

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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.

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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.

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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.

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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.

1. 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.

2. 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.

3. 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.

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1. Protection visas – criteria provided for by this Act

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1. 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.

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