1910741 (Refugee)

[2024] AATA 4470

1910741 (Refugee) [2024] AATA 4470 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910741

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Noelle Hossen

DATE: 8 October 2024

PLACE OF DECISION:  Perth

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

Statement made on 08 October 2024 at 2:09pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – loan shark gang former member – fear of killing – physical assault – state protection – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) FCAFC 33
Minister for Immigration and Multi-Cultural Affairs v S 152/2003 (2004 )222 CLR

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 dependants.

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 8 February 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 8 February 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom the Tribunal has protection obligations.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

9. The applicant travelled to Australia on a Malaysian passport, a copy of which was provided to the Department by the applicant. He, at all times maintained that he was a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds that he is a Malaysian citizen and has assessed his claim against Malaysia as his country of nationality and the receiving country.

   The applicant’s personal background.

10. He was [age] years of age when he arrived in Australia.

11. He obtained his passport [in] 2015 and his passport expired [in] 2020.He departed his home country [in] December 2018.

12. He was granted a UD 601 Visitor Visa to Australia on the 23 November 2018.

13. He provided a schedule of his trips to other countries in his application as follows:

    [Between specified dates in] 2015 Holiday to [Country 1]

    [Between specified dates in] 2015 Leisure trip to [Country 1]

    [Between specified dates in] 2016 Holiday to [Country 1]

    [Between specified dates in] 2016 Holiday to [Country 2]

    [Between specified dates in] 2016 Holiday [Country 3]

    [Between specified dates in] 2017 Leisure Trips [Country 1]

    [Between specified dates in] 2017 Holiday [Country 4]

    [Between specified dates in] 2018 Holiday [Country 1]

    [Between specified dates in] 2018 Leisure trips [Country 1]

    [Between specified dates in] 2018 Leisure trips [Country 1]

14. He said that from the date of his birth to December 2018 he lived at the same address being [an address in Town 1] Kedah.

15. He stated in his application that he went to Primary and Secondary school in Kedah.

16. He stated in his application that he worked as a general manager in a [business 1] in Kedah from [specified year] to December 2014. He then worked as a sales and marketing Manager for a [business 2] from January 2015 to December 2016.

17. He was self employed as [an occupation 1] from January 2017 to the date he left for Australia.

18. The Tribunal accepts the information contained in the preceding 8 paragraphs.

    Before the Department

19. The applicant filed his application for Protection on the 8 February 2019.

20. He was granted a Bridging Visa on the 21 February 2024.His application for Protection was refused on the 26 April 2019.

21. The applicant provided the Tribunal with a copy of the Delegate’s Decision. In the Decision the Delegate summarised the applicant’s protection claims as follows:

    The business in Malaysia failed to generate adequate cash flow to meet its expenses. Subsequently they were unable to afford their monthly expenses such as home and car loan repayments, which impacted on their daily life.

    They borrowed from an illegal money lender to salvage their business and repay their loans.

    The money lender kept disturbing their family, hit them, kick them, and vandalised their house by splashing red paint on the walls.

    They attempted to relocate to [Country 5], but the money lender found them.

    If they return to Malaysia, the money lender will come to them and their family, hit them and tell them to traffic drugs. If they refuse, they will be harmed.

    They do not believe the authorities can help because it is a personal issue.

22. The delegate set out the Country information relied on in their Decision. The Delegate assessed the criteria as follows:

    I have considered the country information and personal circumstances of the applicant. While there may be instances of corruption in the police force in Malaysia, the Malaysian authorities are willing and reasonably effective in combating illegal money lending. While I accept the applicant may not have absolute protection in Malaysia. I find the Malaysian authorities can provide protection to the applicant and they are willing and able to offer such protection. In addition, I find the applicant can access the protection, the protection is durable, and the protection consists of an appropriate criminal law, a reasonably effective police force and impartial judicial system.

    I am satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. Therefore, the applicant is not a refugee as defined in s5H of the Act and the criterion in s36 (2)(a) of the Act is not satisfied for this reason.

23. In respect of the assessment for the complementary protection criteria assessment the delegate stated as follows:

    I have considered whether the applicant will face a real risk of suffering significant harm, as defined in s36(2A) of the Act, from loan sharks if they return to Malaysia. In conserving this , I have taken into account the country information discussed above, personal circumstances of the applicant and followed the considerations of the High Court ‘s Decision in Minister for Immigration and Multi-Cultural Affairs v S 152/2003 (2004 )222 CLR. I find that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s36 (@B). Therefore , there is taken not to be a real risk that the applicant will suffer significant harm and the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.

    Before the Tribunal

24. On the 10 July 2024 the Tribunal sent a Pre Hearing Form to the applicant . The applicant completed the Form and responded on the 12 July 2024.

25. On the 4 September 2024 the Tribunal invited the applicant to a hearing to be held on the 9 October 2024. The Tribunal indicated to the applicant that the Tribunal could not reach a Decision favourable to their case based on the information before it. The applicant responded and did not provide any further information to the Tribunal and stated that they would not attend a further hearing and the matter could be dealt with by the Tribunal based on the information before the Tribunal.

    REFUGEE CRITERION

26. The delegate refused to grant the visa, considering that the harm that he feared was not for reasons of race, religion, nationality or membership of a particular social group or political opinion and therefore the applicant was not a refugee as defined by s 5 H. In relation to the complimentary protection the delegate cited country information 

27. The delegate concluded that effective state protection was available to the applicant, and he did not meet the complementary protection criteria.

28. The Tribunal did not have an opportunity to test the applicant’s claim as he did not attend the hearing. The Tribunal has considered the amount of time that has elapsed since the applicant left Malaysia and there is no evidence that the money lender will still pursue the applicant nearly 6 years later. The Tribunal finds that it is unlikely that the money lender will continue to pursue the applicant if he returns to Malaysia.

29. The Tribunal would have also discussed with him whether the harm that he feared was for reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s 5 J(1)(a). Even if the Tribunal had been satisfied of the factual matters underpinning the claim, it does not accept that the harm feared is for reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s5J(1)(a)

30. The Tribunal has also considered the fact that the applicant can also rely on the Royal Malaysian Police. The country information suggests that “Local and International sources consider the RMP to be a professional and effective police force, although the quality of its members responses varies depending on the level of training, capacity and engagement in corruption”.[1]

    [1] DFAT report June 2024

31. The applicant did not provide further documentation relevant to his claims for protection before the Tribunal. He has not responded to the delegate’s findings or given any reason as to why the delegate’s Decision is incorrect. He has denied the opportunity to give evidence and make arguments in support of his claims.

32. The Tribunal does not have any information regarding whether the risk of harm extends across all of Malaysia.

33. Accordingly, based on the limited evidence before the Tribunal, the Tribunal cannot be satisfied that the information contained in the Application is correct.  Based on the country information, the Tribunal finds that there is not a real chance that the applicant will be seriously harmed if he returns to Malaysia.

34. Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a real chance of serious harm arising from being chased by money lenders, for reasons mentioned in section 5J (1) of the Act or any other claimed reasons if he was to return to Malaysia from Australia now or in the reasonably foreseeable future. As such the Tribunal finds that he has not satisfied the criterion in section 36(2)(a) of the Act.

    Complimentary Protection criterion

35. The Tribunal also considered whether the applicant meets the complimentary protection criterion under section 36 (2) (aa). The real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear. MIAC v SZQRB (2013) FCAFC 33.

36. The Tribunal has considered whether as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the fact that he will be pursued by a money lender. Based on the applicant’s own claims and in the absence of any independent evidence to support his claim that he will be harmed if he is returned to Malaysia as such, it is found that there was no real chance that the applicant will be seriously harmed if returned to Malaysia. As the” real risk test” is the same as the “real chance” standard, it follows that the Tribunal does not accept that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia that there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment.

37. Significant harm is different from the concept of serious harm as required by section 5J (4)(b) in the context of section 36 (2)(a). The Tribunal has already made a finding that it is unlikely that the applicant was being pursued by a credit firm (money lender or loan shark) to repay funds borrowed. As a result, the Tribunal finds that there is no real risk that the applicant will suffer significant harm if he is returned to Malaysia as a result. Based on the available country information the Tribunal finds that as a necessary and foreseeable consequence of being removed from Australia the applicant will not be significantly harmed as required by section 36(2) aa of the Act.

38. At no stage has the applicant advanced any other reason in his written or oral claims that he is owed Australia’s protection obligations. Accordingly, the Tribunal finds that there are no more claims, including based on the applicant’s accepted circumstances to be considered. As such having regard to all the circumstances and findings above considered individually and cumulatively, the Tribunal finds that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is no real risk the applicant will suffer significant harm if he is returned to Malaysia pursuant to section 36 (2) aa of the Act.

    CONCLUDING PARAGRAPHS

39. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

40. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

41. 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

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

    Noelle Hossen
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …