1911282 (Refugee)
[2025] ARTA 1083
•10 January 2025
1911282 (REFUGEE) [2025] ARTA 1083 (10 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1911282
Tribunal:General Member R Chia
Date:10 January 2025
Place:Sydney
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 January 2025 at 1:31pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – threats from money lenders – race – ethnic Chinese – fear of killing – seeking asylum in Australia – passport expiry – blacklisted from further travel – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
SZGJO v Minister for Immigration & Anor [2005] FMCA 1349Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the then Minister for Home Affairs on 26 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.
The applicant applied for the visa on 18 March 2019, claiming to fear harm from persons to whom he owes a gambling debt. However, since the delegate refused to grant him the visa, the applicant has raised new claims, including that he will be subjected to racial discrimination as a Chinese Malaysian; that he will be treated adversely because he does not have a valid passport and because he overstayed and sought asylum in Australia; and that he will suffer economic hardship on return to Malaysia.
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions contained in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
For the reasons set out below, the Tribunal has decided to affirm the decision under review.
BACKGROUND
The applicant is a non-citizen of Australia and a national of Malaysia, born in [Town 1], Johor in [specified year].
The applicant arrived in Australia for the first time [in] January 2016 on an Electronic Travel Authority visa and remained in Australia unlawfully after that visa ended.
On 27 July 2017, the applicant applied for a protection visa; however the visa application was subsequently found to be invalid.
On 15 October 2018, the applicant again applied for a protection visa, and that application was also found to be invalid.
On 18 March 2019, the applicant validly applied for a protection visa. It is this visa application that is the subject of the present review.
In his valid visa application, the applicant claimed that he had a gambling debt, that his creditors bullied and hurt him for not repaying his debt, and that he feared they would kill him if he returned to Malaysia:
I leave my country because i had financial problem. I always trouble with gambling . I come addicted with gambling until one day i drunk and i gambling too much . And they allow me to play first and pay later . But i cant control my self and i lose already [amount] and i cant repay them . But i try to repay them and very hard . They alway come to my stall and force me to pay and take my money . After several month i close my stall because i dont have money for rolling my busines . And they start bully and hurt me because i not repay them . I take money from my friend and run away another part but i still feel not safe because they looking me and i flies here . I hope i can get protection here as australia a good country
On about 23 April 2019, the applicant provided the Department with a copy of pages from his expired Malaysian passport.
On 26 April 2019, the delegate refused to grant the applicant a protection visa. In relation to the refugee criterion, the delegate concluded that the harm the applicant claimed to fear was not for a s 5J(1)(a) reason. And in relation to complementary protection, the delegate concluded that the Malaysian authorities are willing and able to provide an adequate level of protection to the applicant for the purposes of s 36(2B)(b) of the Act.
The applicant applied to the AAT for review of the delegate’s decision.
On about 30 April 2024, the applicant submitted a statutory declaration in which he made new claims alleging racial discrimination as a Chinese Malaysian and fears arising from his treatment on return to Malaysia without a valid passport and having overstayed and sought asylum in Australia:
Further Claim
Potential Racial Discrimination
5.In or about 2015, there was a stranger in the street who scolded me in Malay, without any cause, that I should return to China.
6.He appeared as an indigenous Malay.
7.He further said that I would not understand Malay.
8.Although it was an occasional event, I believed that there was potentially a discrimination by local Malay to other ethnicities in Malaysian society.
9.Further, there is no chance of being accepted if I made a complaint to any government authorities dominated by Malay.
10As it is a general circumstances in society, I believe that the relocation to other part of the country may not be able to mitigate the harm against me.
Potential Penalty after Returning Malaysia for lack of Valid Passport
11.In or about February 2018, I attempted to renew my Malaysian passport which expired [later in] 2018.
12.When I arrived Malaysian [Consulate], the officer of the Consulate asked my visa status in Australia.
13.Due to my invalid application for Protection (Subclass 866) Visa, I became unlawful without holding any visa.
14.The Officer further asked me if I had applied for any visa in Australia previously.
15.I told him that I had applied for Protection (Subclass 866) Visa.
16.Due to my illegal status and previous application for Protection (Subclass 866), the Consulate refused to process my passport renewal further.
17.As a summary, the following would become issues on my return to Malaysia
a. lack of valid passport
b. previous refusal record of passport renewal application
c. overstay record in Australia
d. record on seeking asylum in Australia.
18.It is anticipated that the issue set out on Item 17 of this Statutory Declaration would lead to the following consequences:
a. I could be questioned or entry delay at the Malaysian border.
b. I could be blacklisted or prevented from further travel.
19.Such consequences prescribed on Item 18. of this Statutory Declaration would be regarded as a harm to my right, as a citizen, to leave and enter the country freely.
20.Although I have not submitted this claim at the time of visa application, it does not negate the chance of the harm against me.
21.There is no chance of mitigation of the harm by relocation within the country.
The applicant was represented in relation to the review and his representative provided written submissions and copies of country information to the Tribunal, which have been considered.
On 14 November 2024, the applicant appeared before the Tribunal with the assistance of an interpreter in the Mandarin and English languages.
At the hearing, the applicant said that his protection visa application had been prepared with the assistance of someone he found online; that he only needed to provide the “basic information” such as the details of his passport and family members and left “the rest” to the agent to complete; and that he did not provide information about why he left Malaysia and feared harm.
The applicant said that he does not have a gambling debt and does not fear harm because of a gambling debt. He said that he fears harm because of racial discrimination; because he was refused a new Malaysian passport, overstayed and sought asylum in Australia; and also because he has “financial concerns” regarding returning to Malaysia. He confirmed in regard to his protection claims there was “nothing else”.
The applicant’s evidence will be referred to below, where relevant.
After the hearing, the applicant’s representative provided to the Tribunal further written submissions and a further statutory declaration of the applicant dated 20 November 2024, which have also been considered.
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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act. 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) of the Act. 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) of the Act.
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 s 5K-LA of the Act, 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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the claim. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Identity and receiving country
On the basis of the applicant’s expired Malaysian passport, the Tribunal accepts the applicant’s claimed identity, that he is a national of Malaysia and that Malaysia is the receiving country for the purposes of the assessment of Australia’s protection obligations.
Credibility findings
The Tribunal finds that the applicant’s evidence lacks credibility. It makes this finding based on the fact that the applicant has in the past lodge several protection visa applications containing completely different reasons why he left Malaysia and why he claims to fear harm; and because the claims for protection the applicant now relies upon could have been, but were not, raised earlier.
During the hearing, the Tribunal put to the applicant information obtained from his previous invalid visa applications for comment. The information was that:
a. in his 27 July 2017 invalid protection visa application, when asked why he left his country, the applicant said he left Malaysia because of “riot and racism”, “lost confident to government …”, “the economy is bad …” and “another part of the country are seeking there own independent (sabah and Sarawak)”; and
b.in his 16 October 2018 invalid protection visa application, in response to the question why he left his country, the applicant said: “I am in love with my gay partner. Malaysia is a Islamic country there are now allowed gay …”.
The Tribunal explained to the applicant that this information was relevant because the different reasons he had provided for why he left Malaysia undermined his credibility, and the consequence of it being relied upon was that the Tribunal may find that the applicant does not, or has no basis to, fear harm based on racial discrimination, renewal of his passport being refused or his treatment as a person who overstayed and sought asylum in Australia.
In response, the applicant said that when he first came to Australia he tried many times to apply for a visa with four different people. As with his valid visa application, the applicant said he just paid the agent, gave them the “basic information”, and let them handle “the rest”. He said that it was only when he retained his current representative that he found out what had been written in his visa applications and he said that “none of that happened” and he was “totally in shock”. He said that his new claims based on him being refused a replacement passport are true.
The Tribunal is willing to accept that in relation to each of the applicant’s visa applications he gave his agent the “basic information” and left “the rest” for the agent to complete, including the reasons he left Malaysia and his claims for protection. However, even if the applicant had no knowledge of the claims contained in his visa applications at the time they were lodged with the Department, on the applicant’s own evidence, he knew that he was only providing the “basic information” and was leaving “the rest” to the agent. The fact remains that the applicant did not take steps, either before or after his visa applications were lodged, to ensure for himself that the content of his visa applications were accurate and complete. Even if the applicant did not understand or was not aware of the claims contained in his visa applications, he was at the very least indifferent as to their content. And, as Driver FM (as his Honour then was) said in SZGJO v Minister for Immigration & Anor:[1]
… an applicant is just as responsible for a false application when he is indifferent as to its contents as where he has been found to be knowingly concerned with the making of a false application.
[1] [2005] FMCA 1349 at [39].
The Tribunal finds that the applicant’s indifference to the content of his valid and invalid visa applications significantly undermines his credibility.
Secondly, the Tribunal notes that the applicant has raised new claims in his 30 April 2024 statutory declaration and at the hearing, which it finds could have been raised before the Department.
When the Tribunal asked the applicant why his new claims were not raised before the Department, he again said that he had not previously known what claims were set out in his visa application; he had just provided the agent with the “basic information”. However, as with his invalid visa applications, the Tribunal finds the applicant knew that he was leaving “the rest” to the agent and was indifferent to the content of his visa application. Based on the evidence before it, the Tribunal finds that the applicant could have, but chose not to, instruct his agent to include his new claims in his visa application. The Tribunal does not accept the applicant’s indifference to the content of his visa application as a reasonable explanation for why his new claims could not have been raised before the delegate made their decision.
In his 20 November 2024 statutory declaration, the applicant provided a different explanation for why he could not have raised his new claims before the Department. This was that he “had no knowledge … that I should inform the Department of Home Affairs for the consequences of refusal of passport renewal, as a claim on my primary application” because he did not have “proper legal advice” at the time. The applicant’s current representative made a submission in similar terms in his post-hearing submissions. However, the Tribunal does not accept this explanation, either. If not self-evident, the applicant did not need “proper legal advice” to know that he should have included his protection claims in his protection visa application because the visa application form stated:
A decision may be made on the information provided in this application and applicants may not be given another opportunity to present these claims. Therefore, it is important that the applicants include all details relevant to their case and attach any supporting documentation to this application before it is submitted.
In the Tribunal’s view, had the applicant completed the entire protection visa application form, either by himself or with the assistance of his agent, and not left it to his agent to complete “the rest” themself, he would have read or had explained to him the above advice. Again, the Tribunal does not accept the applicant’s indifference to the content of his visa application as a reasonable explanation for why his new claims were not raised earlier.
The Tribunal finds that these matters significantly undermine the credibility of the applicant’s evidence.
Racial discrimination
In the present case, the applicant claimed in his 30 April 2024 statutory declaration that he has been subjected to “potential” racial discrimination as a Chinese Malaysian, namely that he was “scolded” in Malay, and told that he should return to China and that he does not understand Malay.
The applicant said at the hearing that in about 2006 or 2007 he was with his father, a person spoke to him in Malay and, when he indicated he did not understand, he was told that this is Malaysia and he has to speak Malay or otherwise he could go back to China. He said that there were other instances he could think of but he chose to ignore them.
The applicant also said that if he goes back to Malaysia he would be treated differently. He said that for example if he wanted to run a business and needed a permit from the government the government would always prioritise Malay ahead of Chinese applicants.
DFAT assess that Malaysia is ethnically diverse and has historically experienced episodes of racial tension.[2] Country information also notes that Malaysia continues to experience inter-ethnic tensions, particularly during moments of crisis, often actively encouraged by political parties with a vested interest in stoking friction as a distraction from scandals around misgovernance and corruption.[3] Malaysia has for decades reserved special privileges for the majority ethnic Malay (or Bumiputera) in the face of minority ethnic Chinese and Indians.[4] Country information assesses that:[5]
Many members of the Chinese minority continue to feel they are victims of discrimination through the actions of public authorities who continue to favour Bumiputeras in terms of employment and education, the use of an exclusive Malay-language policy for state schools, and various other measures which are still in place in order to enhance the position of Malays in many areas of society.
While there has been a perceptible shift in some official statements since 2003, suggesting that affirmative action programmes have either not worked as expected or should be replaced, overall there have not been any significant developments in the following years other than permitting English to be used for the teaching of mathematics and sciences in state schools, and teaching Mandarin as an elective in some state schools. None of these steps change the main causes of exclusion and disadvantage, which may constitute discrimination since they appear to be in place to maintain Malay dominance of society, if not of the economy.
[2] DFAT, ‘Country Information Report: Malaysia’ (24 June 2024) at [2.2].
[3] Minority Rights Group ‘Malaysia, Current Issues’ (January 2018) available at Ibid.
[5] Minority Rights Group ‘Chinese in Malaysia’ (January 2018) available at >
DFAT assesses that, although there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians, they experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service or when opening or operating a business in the private sector.[6]
[6] DFAT, ‘Country Information Report: Malaysia’ (24 June 2024) at [3.11]-[3.15].
In light of the adverse credibility finding made above, the Tribunal is not willing to accept the applicant’s evidence as to past events in Malaysia. Namely, the Tribunal does not accept the applicant was “scolded” in Malay, and told that he should return to China and that he does not understand Malay; or that he was told on a separate occasion that this is Malaysia and he has to speak Malay or otherwise he could go back to China.
Further, as put to the applicant at the hearing, even if the Tribunal accepted the applicant’s evidence and accepted that the past events alleged by the applicant in fact occurred (which it does not), it does not accept that they amount individually or cumulatively to serious harm. The offensive comments alleged by the applicant do not amount to “significant physical harassment” or “significant physical ill-treatment” under s 5J(5)(b) and (c) of the Act. Nor is the Tribunal satisfied they otherwise constitute “serious harm” for the purposes of s 5J(4)(b) of the Act.
Nonetheless, the Tribunal is willing to accept on the basis of the country information set out above that, as a Chinese Malaysian, the applicant may experience low level discrimination in employment and business, such as preference being given to Malay applicants in obtaining government approvals or permits, or in applying for jobs in the government or private sector. However the Tribunal does not accept that such discrimination would amount to serious harm or a threat of serious harm for the purposes of s 5J(4)(b) of the Act. Such differential treatment does not involve physical harassment or ill-treatment. And, though it may result in the applicant being financially disadvantaged, as discussed further below, the Tribunal does not accept that such treatment will threaten the applicant’s capacity to subsist. Nor is the Tribunal satisfied it would otherwise constitute “serious harm” for the purposes of s 5J(4)(b) of the Act.
Treatment as a returnee
The applicant claimed in his 30 April 2024 statutory declaration that he will be questioned at the airport and blacklisted or prevented from further travel because he has been refused a replacement Malaysian passport and he has overstayed and sought asylum in Australia.
DFAT assesses that Malaysians who have overstayed their visas in other countries may be blacklisted or prevented from further travel and those that are returned from Australia face a passport ban:
Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return because of their absence. Authorities generally pay little attention to Malaysians who over-stay their work or tourist visas or breach visa conditions in other countries upon their return to Malaysia. Likewise, failed asylum seekers would be unlikely to face adverse attention, as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport had expired while abroad. There is widespread media reporting on the issue of Malaysian nationals travelling to other countries and applying for asylum for the purpose of obtaining work rights. The International Organization for Migration (IOM) assists voluntary returnees, and Malaysian authorities cooperate with the IOM in these arrangements.
Nevertheless, under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries (whether or not they apply for asylum) may be blacklisted and prevented from further travel, normally for a period of up to two years. Cases are unlikely to come to attention, unless the Malaysian is removed (i.e. deported) from another country or applies to renew a passport through a diplomatic mission overseas. If removed on an emergency travel document, a Malaysian national will be directed to report to Immigration in Putrajaya and may face a fine for not returning on a full passport.
The Tribunal accepts that the applicant’s Malaysian passport expired in 2018, that he overstayed his Electronic Travel Authority visa and has applied for and been refused a protection visa. However, given the Tribunal’s adverse credibility finding above, it is not willing to accept the applicant’s evidence that he told an official at the Malaysian consulate that he was unlawful and had applied for a protection visa in Australia, and does not accept that the consulate refused to renew his Malaysian passport. The Tribunal does not accept the applicant’s evidence that he was not able to renew his Malaysian passport before his previous passport expired. Having regard to the country information before it, the Tribunal therefore does not accept that the applicant will be questioned or have his entry delayed, blacklisted or banned from future travel, fined or otherwise punished on return to Malaysia.
Further, as put to the applicant at the hearing, even if the Tribunal accepted that he will be adversely treated in the way claimed on return to Malaysia (which it does not), the Tribunal does not accept that such treatment amounts to serious harm for the purposes of s 5J(4)(b) of the Act. The applicant being questioned, having his entry delayed or being blacklisted or prevented from further travel does not amount to “significant physical harassment” or “significant physical ill-treatment” under s 5J(5)(b) and (c) of the Act. Nor is the Tribunal satisfied such treatment would otherwise constitute “serious harm” for the purposes of s 5J(4)(b) of the Act.
When this was put to the applicant at the hearing, he said that the most important thing for him is that if he goes back to Malaysia he won’t be able to come back to Australia to run his farm business in [Town 2]. After the hearing, the applicant further said in his 20 November 2024 statutory declaration and submissions that, in being refused a Malaysian passport, he is being refused a “basic service” in Malaysia under s 5J(5)(e) of the Act and will suffer significant economic hardship because he cannot come to Australia to manage his business and it will fail. However, even if a passport can be considered a “basic service”, the Tribunal does not accept that the applicant being refused a Malaysian passport “threatens the [applicant’s] capacity to subsist” for the purposes of s 5J(5)(e) of the Act. If the applicant has to close his business in Australia and return to Malaysia, as discussed below, the Tribunal finds that the applicant will be able to find work and his capacity to subsist will not be threatened. Nor does the Tribunal accept that any financial hardship he may suffer would otherwise amount to serious harm for the purposes of s 5J(4)(b) of the Act.
On the evidence before it, the Tribunal does not accept that the applicant was not able to renew his Malaysian passport and, further, finds that, even if it accepted he told the Malaysian consulate he was unlawful in Australia and had applied for protection and was not able to renew his passport (which it does not), his treatment on return to Malaysia will not amount to serious harm.
Financial concerns
The applicant claimed at the hearing that, in addition to the claims set out in his 30 April 2024 statutory declaration, he also fears harm on return to Malaysia due to ”financial concerns”. He said that he doesn’t know what work he can find in Malaysia when he only has experience working on a farm; that his salary will be low and he does not know where he will live. He also said that he owes money to his brother-in-law and, if he worked in Malaysia, he does not know when he can repay him.
DFAT assesses that Malaysia as an upper middle-income, export-oriented economy with real GDP growth of 8.7 percent and per capita GDP of USD11,993 in 2022. 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.[7]
[7] DFAT, ‘Country Information Report: Malaysia’ (24 June 2024) at [2.7].
DFAT also assesses that in April 2023 Malaysia had a reported unemployment rate of 3.4 per cent with labour shortages in may sectors.[8]
[8] DFAT, ‘Country Information Report: Malaysia’ (24 June 2024) at [2.10].
In light of the country information before it, the Tribunal is satisfied that the applicant can find work on return to Malaysia. When asked what work he would do if he returned to Malaysia, the applicant at first said that he does not think there is any work for him but, when it was put to him he could find work in Kuala Lumpur, accepted it was possible. The applicant also said that he would face difficulties finding work because he does not speak Malay and does not speak good English. However, country information indicates that, due to Malaysia’s strong economic ties with China, there is a high demand amongst employers for Mandarin speaking job candidates, with approximately 20.8 percent of all job listings in Malaysia’s top job portals listing “Mandarin” as a requirement.[9] China is Malaysia’s largest trading partner and many Chinese companies, workers and customers are able to communicate only in Mandarin.[10] The Tribunal accordingly does not accept that the applicant will not be able to find work in Malaysia because Mandarin is the only language he speaks fluently. Further the applicant’s own evidence was that he had previously run a [business 1] in Malaysia with his father and later established his own business in [Town 2]. On the evidence before it, the Tribunal finds that the applicant would be able to either find employment or establish a new business on return to Malaysia.
[9] ‘M’sians with fluent Mandarin in Higher Demand in job market than degree holders’ Weirdkaya.com, 17 Apr 2024; ‘Amidst Malaysia’s rising polarisation: what more Mandarin-speaking non-Chinese Malaysians show’ Fulcrum 9 Dec 2024; ‘Malaysian employers now prefer Mandarin proficiency over degrees when hiring’ Says 16 Apr 2024.
[10] ‘Knowing another language opens up billions in opportunities’ Malaysiakini.com 23 May 2019.
The applicant said in his 20 November 2024 statutory declaration that he would not be able to establish a business in Malaysia with the same standard of income as his business in Australia. The Tribunal accepts that the applicant may not be able to earn the same level of income in Malaysia as he presently earns in Australia; however the Tribunal does not accept that the applicant’s capacity to subsist would be threatened or that he would otherwise be subjected to serious harm. The Tribunal accepts that the applicant may experience a degree of financial hardship, associated with returning and re-establishing himself in Malaysia. However the Tribunal has found that the applicant will be able to find work on return to Malaysia. The Tribunal does not accept that the applicant will experience a level of financial hardship amounting to serious harm for the purposes of s 5J(4)(b) of the Act.
For completeness, the Tribunal notes that, although the applicant’s valid and invalid visa applications contained other claims for protection (including that he had a gambling debt, that he left Malaysia because of riot, lost confidence in government and Sabah and Sarawak were seeking independence, and that he has a gay partner), the Tribunal finds that these claims have been abandoned if not expressly disclaimed by the applicant. The applicant said at the hearing that he does not owe gambling debts, that “none of that happened” and that he feared harm because of racial discrimination, he was refused a passport, overstayed and sought asylum in Australia and his financial concerns, and “nothing else”. The Tribunal has nonetheless considered those claims and, based on the lack of any probative evidence in support thereof, is not satisfied that those claims have been established.
The Tribunal is not satisfied that the applicant will be subjected to serious harm on return to Malaysia for the reasons he claims, considered individually and cumulatively, or for any other reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the complementary protection criterion in s 36(2)(aa) of the Act, which requires an assessment of whether there is a “real risk” the applicant will suffer “significant harm”.
The assessment of “real risk” involves the same test as that involved in an assessment of “real chance” under the refugee criterion,[11] and “significant harm” is exhaustively defined in s 36(2A) of the Act as the applicant being arbitrarily deprived of his life; the death penalty being carried out; or the applicant being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
[11] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [246] per Lander and Gordon JJ (Besanko and Jagot JJ agreeing at [296], Flick J agreeing at [342]).
The Tribunal has not accepted that the applicant faces a real chance of serious harm on return to Malaysia now or in the foreseeable future for reasons set out earlier in this decision. The Tribunal has found that the applicant may experience low level discrimination in employment and business in Malaysia but that this would not amount to serious harm. The Tribunal has also found that the applicant may experience a degree of financial hardship on return to Malaysia but this would also not amount to serious harm.
Having regard to the factual findings made above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will be subjected to significant harm as defined in s 36(2A) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 14 November 2024
Representative for the Applicant: Mr Chi Yuen Pang
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.
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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.
(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.
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36 Protection visas – criteria provided for by this Act
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(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.
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