1912353 (REFUGEE)
[2024] ARTA 171
•30 October 2024
1912353 (REFUGEE) [2024] ARTA 171 (30 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1912353
Tribunal:General Member R Timms
Date:30 October 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 30 October 2024 at 2:12 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – written claims of harassment and threats by people who lost money in fraudulent multilevel marketing business – claims at hearing as election campaigner for political party – harassment by supporters of new government after election loss, and by fellow-supporters who had made campaign donations – no direct threats – employment discrimination, age and serious health condition and treatment – working in Australia to reduce debt – passage of time and no recent approaches by creditors to wife – written claims changed by person who assisted with application – responsibility to specify all particulars and provide sufficient evidence – likely or possible harm not for refugee or complementary criteria reasons – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
EZC18 v MHA [2019] FCA 2143
Guo Wei Rong v MIEA (1996) 64 FCR 151; (1996) 40 ALD 445
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 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 national of Malaysia, applied for the visa on 14 September 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
3. The applicant appeared before the Tribunal on 30 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
Evidence before the Department
4. The Tribunal has before it Departmental file [Reference], which contains a number of file items including the following:
· Protection visa application form.
· Supporting documents.
Evidence before the Tribunal
5. The Tribunal also has before it the online Tribunal file (Tribunal online reference # 20190518-63793) which contains a number of file items including the following:
· Review application form.
· The delegate’s decision.
· The hearing recording.
BACKGROUND
The applicant’s personal background
6. The applicant is a [Age]-year-old male of Malay ethnicity and Muslim religion who is married with [children], with his wife and children all living in Kedah in Malaysia. His eldest child is aged [Age] and his youngest child is aged [Age] years old.
7. The applicant gave evidence that he was born in the Malaysian state of Kedah, as one of [number] siblings, and that his family was an upper middle-income family. His late father was [an occupation] and senior member of [a Group] in his later working years, and his mother was at home raising the family.
8. He completed a Bachelor of [Subject] in [Year], and immediately prior to arriving in Australia in July 2018 he owned and managed a [business 1] with his wife in Kulim in Kedah, prior to which he was the manager of a [facility] also in Kulim, and the owner and manager of a [business 2] from in Kuala Lumpur, and an employee of a [business 2] also in Kuala Lumpur.
9. Since arriving in Australia, the applicant has been employed in Australia in a number of different roles which have included [workplace 1] work, [workplace 2] work, and his current [work task] work.
10. The applicant gave further evidence that soon after he arrived in Australia he was assisted with his protection visa application by a fellow Malay who helped him with drafting its content.
11. The Tribunal accepts the above matters to be true.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
12. 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.
13. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act
17. Pursuant to s 5AAA of the Migration Act, it is for the review applicant to specify all particulars of the 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.
18. The Tribunal has applied this provision when considering the applicant's claims and evidence.
Mandatory considerations
19. 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.
REASONS AND FINDINGS
20. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or instead under the ‘complementary protection’ criterion, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.
21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
22. The applicant arrived in Australia on a Malaysian passport, a copy of which is contained on the departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. At hearing, the applicant also confirmed that he holds Malaysian citizenship, and only Malaysian citizenship.
23. The Tribunal finds that the applicant is a Malaysian citizen, and the Tribunal has assessed his claims against Malaysia as the country of nationality and the receiving country.
The applicant’s claims for protection
24. In his protection visa application, in relation to his reasons for claiming Australia’s protection, the applicant claimed as follows:
His situation at the time of leaving Malaysia
· he was being harassed through WhatsApp and through phone calls by people demanding that he pay money which he did not owe. They began threatening him and used hate words against him, and said they would harm him.
· this harassment was as a result of a multilevel marketing business with which he was involved in 2015, in which he recruited a number of friends and colleagues to invest. Unfortunately, that business was fraudulent, and he lost a lot of money, and his friends and colleagues lost their money too. They were demanding that he return to them the money they had lost.
· the friends and colleagues also posted online which went viral, which shamed him and he quit his job and returned to his home town in 2016. But he was unable to find a job because he was being discriminated against because of what had happened, and also because of his age, and so he was forced to retire and fill his time by looking after his father-in-law’s [animals] which also provided him a little income.
· he was also involved in politics, and was running an online election campaign for the Barisan Nasional (BN) political party who had told him they would settle his debts to his investors if the BN party won the election.
· he fell out with his father-in-law and with his brothers over political arguments, and he was left with further problems after the BN party lost the election when the new government people started harassing him for his boldness through the election campaign. Because of this also, he was unable to obtain a job and he could no longer work for his father-in-law looking after the [animals].
· followers of the new government harassed him with hate words and threatened him, and he sought help from a BN party youth leader but received no response.
· he tried making a report to the police, but he was ignored.
· in relation to the failed multilevel marketing business investment, he had moved for safety from KL to his hometown in Kedah, but he was unable to escape his investor friends and colleagues. He also faced new troubles in Kedah through his BN party support.
If he is to return to Malaysia
· if he is to return to Malaysia, all the threats will be realised and he will be harmed physically and mentally by both the investors and by the followers of the new government.
· he believes that the authorities will not protect him because he is known to be a follower of the opposition, and the police will always be on the government side.
· he will not be able to relocate within Malaysia to avoid harm because he used up all his money to come to Australia and to build a new life in Australia.
25. The delegate refused to grant the applicant a protection visa, not being satisfied that he was a ‘refugee’ as defined by the Act. This was on the basis that the delegate was satisfied that there is not a real chance that the applicant would face serious harm in Malaysia for reasons of political opinion. The delegate also considered the applicant’s claims under the complementary protection criterion but found that there was no real risk of the applicant facing significant harm for reasons of political opinion. In relation to harm from former investors, the delegate also found 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.
Oral evidence provided by the applicant at hearing
26. At hearing, the applicant provided further oral evidence in support of his claims, which the Tribunal relevantly summarises as follows:
· he came to Australia seeking a break from pressures related to a debt which he has in Malaysia, and also seeking to explore work opportunities in Australia so as to work to reduce some of his debt and relieve some of his financial pressures in Malaysia.
· at the time he came to Australia, he thought he potentially might stay in Australia for between six to 12 months.
· his debt was in excess of 500,000 ringgit, and it related to campaign contributions made to a Barisan Nasional (BN) political candidate prior to the May 2018 general election in Malaysia. Those contributions had been made through the applicant by seven different contributors, on the applicant’s promise to them that they would all be awarded business contracts after the BN candidate had won in the general election. Each of the contributors had contributed between 50,000 to 120,000 ringgit, with no interest having been discussed as being applicable because it had simply been assumed by all that the BN candidate would win in the election. However, the BN party - which had been in power for many years - very unexpectedly lost the 2018 general election and the promised business contracts were unable to be awarded.
o the Tribunal notes that the applicant was unable to tell the Tribunal the exact amount of this debt, first only stating that it was around 500,000 ringgit, and then later stating it was between 500,000 to 550,000 ringgit.
· after the election loss, the contributors started to call him with requests for their contributions back, to which the applicant had responded that the deal was that they would get government contracts if the election was won, but otherwise if the election was lost then the government contracts were also lost. The contributors however were reluctant to accept this, and because the applicant did not wish to have any hassle with the contributors at that time, and because he also felt responsible to them for having promised them contracts in exchange for the contributions, he told them that he would repay them and that he just needed time to repay them.
· after this, the contributors would then regularly follow up the applicant by phone about his repayment to them, but often he did not answer their calls.
· on one occasion, around two or three months prior to the applicant’s arrival in Australia, one of the contributors had visited the applicant’s house accompanied by two men, seeking to discuss repayment face-to-face with the applicant. The applicant had been absent from home at that time, and the contributor had spoken instead with the applicant’s wife, asking her that the applicant make repayment.
· while none of the contributors ever directly threatened the applicant, they called him regularly and the tone of their calls became increasingly sarcastic.
· the applicant increasingly became stressed and worried that the contributors might soon resort to loan shark-type measures and seek to harm him and his family to ensure repayment by him. He worried that they might seek to hire someone else to carry out this harm against him and his family, and to paint his house like loan sharks do.
· before coming to Australia, to ensure the safety of his wife and children, he had moved his wife and children to the house of her parents which was in a gated compound and which had a location unknown to the contributors.
· the applicant had also gone to the police to make a report about his situation. The police however had told him that they could do nothing because he had no real evidence, and they told him to contact them if the situation changed.
· since leaving Malaysia for Australia in July 2018, the applicant has managed to pay back approximately 30% of the contributions. This however has only been to three of the campaign contributors, with the amounts repaid being just enough so that those contributors would not look for his wife. He had chosen to repay these three contributors over the others because he believed that they were prepared to accept smaller amounts, and because they were not so aggressive compared to the others in terms of their repayment demands. He had made these repayments from wages which he had earned in Australia, which his wife and his father-in-law had then transferred into the bank accounts of those three contributors.
· since leaving Malaysia also, the applicant has changed his contact details and he has heard nothing from the contributors, and nor has his wife who has moved away.
· very recently, he has been diagnosed in Australia with a serious cancer condition, and he needs treatment for this cancer condition including six weeks of radiotherapy.
· while he had left Malaysia fearing harm from the campaign contributors, if he must return to Malaysia he does anymore fear harm from those contributors, due to the very long time which has now passed since he left Malaysia.
o the Tribunal notes that the applicant initially told the Tribunal that if he must now return to Malaysia, he feared being harmed by the contributors on his return. However, after the Tribunal discussed with the applicant whether there was any real chance or real risk of him being harmed by the campaign contributors given that approximately six years have passed since his arrival in Australia, and given the Tribunal’s understanding that he and his wife had heard nothing from the contributors since his departure from Malaysia and that he did not know whether they were still seeking repayment by him, the applicant told the Tribunal that in all honesty he did not anymore fear harm from the contributors. He further stated that he was not sure whether he would be noticed by them on his return to Malaysia, and that he did not even know if all of the contributors were still alive.
o the Tribunal further notes that the applicant had made no mention in his protection visa application of any debt relating to campaign contributions, but instead had only mentioned a debt relating to a multilevel marketing scheme. At hearing, the Tribunal discussed with the applicant that it might consider his claims relating to the campaign contributors to be new claims made by him after the department had refused his protection visa application. The Tribunal further discussed with the applicant that under the Migration Act it is required to draw a negative inference against the credibility of new claims or evidence unless a reasonable explanation can be provided for the delay in providing the new claims or new evidence. The applicant responded by stating that the reason for these new claims not having been mentioned in his original protection visa application was that the person who had assisted him with his protection visa application had changed his answer in order to increase his chances of protection visa approval.
· he cannot return to Malaysia because he has [children] to support there, and he fears economic harm to himself and his family if he is to return to Malaysia because he has no job in Malaysia, and he fears he will not be able to find a job there because of the state of the Malaysian economy where even recent graduates are struggling to find work, and that his age and his health and his lack of strength because of his health condition and his lack of up-to-date computer skills, would make it very difficult for him to find any work in Malaysia, including manual work as well as corporate work.
o the Tribunal discussed with the applicant the legislative requirement that in order for him to qualify for a protection visa as a refugee, the Tribunal must be satisfied that this economic harm which he feared would be harm directed at him for reasons of his race, religion, nationality, political opinion, or membership of a particular social group in Malaysia. The Tribunal discussed with the applicant that the Tribunal might consider that this economic harm would be directed at him for reasons related to the economy in Malaysia rather than for reasons of his race, religion, nationality, political opinion, or membership of a particular social group, and it invited the applicant’s comment on this. The applicant told the Tribunal that he did not believe that this economic harm would be directed at him for any of the reasons of his race, religion, nationality, political opinion, or membership of a particular social group.
o the Tribunal further discussed with the applicant the legislative requirement that in order for him to qualify for protection visa under the complementary protection criterion, the Tribunal must be satisfied that this economic harm which he fears is significant harm as defined under the Migration Act. The Tribunal discussed with the applicant that the Australian courts have held that this definition of significant harm generally requires intentional harm by a third party, and that the Tribunal might consider that this economic harm which he feared was not torture being intentionally inflicted on him, and that it was not pain or suffering being intentionally inflicted on him, and that it was not degrading treatment or punishment being inflicted on him with the intention of causing him extreme humiliation, and that it also did not involve the death penalty being carried out on him, or him being arbitrarily deprived of his life. The Tribunal invited the applicant’s comment on this, and the applicant stated that he accepted that the economic harm which he feared did not meet the scope of the definition of significant harm.
· he also cannot return to Malaysia because he wishes to be treated for his cancer in Australia rather than in Malaysia. He is concerned about the medical system in Malaysia through which his own father had a very bad experience, and he knows that he could receive proper treatment far more quickly in Australia than in Malaysia.
o the Tribunal discussed with the applicant the legislative requirement that in order for him to qualify for a protection visa as a refugee due to any harm caused by his medical condition having to be treated in Malaysia, the Tribunal must be satisfied that this resultant harm which he fears would be harm directed at him for reasons of his race, religion, nationality, political opinion, or membership of a particular social group in Malaysia. The Tribunal further discussed with the applicant that alternatively it needed to be satisfied under the Complementary Protection criterion that the harm is “significant harm” as defined under the Migration Act which generally required an intentional infliction of harm. The Tribunal invited the applicant’s comment on these considerations, and the applicant responded that he viewed this to be more about his personal health rather than about him meeting the refugee or complementary protection requirements.
· he also cannot return to Malaysia because he fears mental stress related to the possibility of economic harm to himself and his family, and mental stress about his health condition, if he must return to Malaysia.
o the Tribunal discussed with the applicant the legislative requirement that in order for him to qualify for a protection visa, the Tribunal must be satisfied that this harm which he feared from mental stress would be harm being directed at him for reasons of his race, religion, nationality, political opinion, or membership of a particular social group in Malaysia, or else that it is significant harm with its general requirement of intentionally caused harm. The Tribunal discussed with the applicant that the Tribunal might not consider that this mental harm would be directed at him for reasons related to his race, religion, nationality, political opinion, or his membership of a particular social group, and that it might also not consider that it was “significant harm”, and it invited the applicant’s comment on these considerations. The applicant stated that he understands that his situation does not meet minimum requirements.
·if he must return to Malaysia, he would most likely return to Kuala Lumpur where he had lived previously, in order to maximise his prospects of obtaining work, and he hopes that he might be able to obtain work there like [work tasks] work.· when questioned by the Tribunal directly about his written claims in his protection visa application, which the Tribunal told the applicant appeared to be very different to the oral testimony he had just given to the Tribunal, the applicant gave the following further evidence:
o his oral evidence given at hearing to the Tribunal was all given under oath, and it was all true.
o his written claims in his protection visa application that he had been involved in a multilevel marketing business, and that he had recruited a number of friends and colleagues to join in investing in that business, who had then lost money in that business, and who were threatening and harassing him as a result, were not true. This had been included, as an embellishment to his application, by the person who had assisted him with his protection visa application, to help ensure his eligibility for a protection visa.
o he was involved in online campaigning for a Barisan Nasional (BN) political candidate, and while he had tried to raise money online for the same BN party political candidate for whom he had collected over 500,000 ringgit in political donations from the campaign contributors, he did not fear any violence on his return to Malaysia because of this.
· he is now [Age] years old, and if he must return to Malaysia he would not wish to return until he turns 55 years old at which time he will qualify in Malaysia for a pension lump sum of approximately 300,000 ringgit. This lump sum will make life much better for him in Malaysia, and at that time he would be good to go home.
FINDINGS
Credibility
27. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the evidence, and the Tribunal acknowledges the importance of adopting a reasonable approach in its findings in relation to the credibility of evidence. In Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151; (1996) 40 ALD 445, the Full Federal Court made comments about determining credibility, and the Tribunal takes particular note of the following comments provided by Foster J at 482:
…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.
28. The Tribunal further acknowledges that difficulties are often faced by genuine asylum seekers in being able to support their claims by documentary evidence or other proof, and it acknowledges the importance of giving the benefit of the doubt to asylum seekers whose account appears generally credible but who are unable to substantiate all of their claims. In relation to this, the Tribunal accepts and applies in its findings process the credibility-related guidance provided by the United Nations High Commissioner for Refugees:
…if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts[1].
Harm from campaign contributors
[1] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at paragraphs 196 and 204).
29. At hearing, the applicant claimed that while he had left Malaysia seeking a break from pressures related to a debt of in excess of 500,000 ringgit which he owed to campaign contributors, given the passage of time which has passed since he left Malaysia he no longer fears harm from those campaign contributors if he must now return to Malaysia.
30. While the Tribunal makes no finding as to whether the applicant has ever owed money to campaign contributors, or whether he has ever felt threatened by campaign contributors as a result, the Tribunal accepts the applicant’s evidence that he does not fear harm from campaign contributors if he must return to Malaysia.
31. In considering whether the applicant meets eligibility requirements as a refugee in relation to campaign contributors, among other requirements the Tribunal must be satisfied that the applicant subjectively fears serious harm from campaign contributors if he must return to Malaysia: s5(1)(a) of the Act refers.
32. However, given the Tribunal’s above finding that the applicant does not fear harm from campaign contributors if he must return to Malaysia, the Tribunal finds that s5(1)(a) of the Act is not met in relation to campaign contributors.
33. In considering whether the applicant instead meets the Complementary Protection criterion under s36(2)(aa) due to harm from campaign contributors, the Tribunal must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk that he will suffer significant harm.
34. However, the Tribunal finds that the only evidence before the Tribunal in relation to any future harm to the applicant from campaign contributors was evidence given by the applicant himself at hearing, where he initially told the Tribunal that he feared harm from campaign contributors if he must return to Malaysia. However, the Tribunal also finds that after the Tribunal discussed with the applicant at hearing whether there was now any real risk of harm to him from campaign contributors given among other things the passage of time which had elapsed since the applicant had departed from Malaysia, the applicant then told the Tribunal that in all honesty he no longer fears harm from campaign contributors. In these circumstances, and given also the Tribunal’s above finding that the applicant does not himself fear any harm from campaign contributors if he must return to Malaysia, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm from campaign contributors if he must return to Malaysia.
Harm through being unable to find work
35. At hearing, the applicant claimed that he cannot return to Malaysia because he fears that he will be unable to find a job in Malaysia to support his family of [children] due to the general economic situation in Malaysia. He fears that his difficulty in finding work in Malaysia will be increased for him because of his age, and his cancer condition including also his lack of strength because of his cancer condition, as well as because of his lack of up-to-date computer skills.
36. In considering whether the applicant meets eligibility requirements as a refugee in relation to the applicant’s fear of harm through being unable to find work and support his family, among other requirements the Tribunal must be satisfied that the harm feared by the applicant is harm resulting from persecutory conduct directed at the applicant for the essential and significant reason of his race, religion, nationality, political opinion, or his membership of a particular social group.
37. The Tribunal accepts that the applicant has recently been diagnosed with a serious cancer condition, and that he also has been working in more manual occupations for a number of years and that his computer-related skills are likely no longer to be up-to-date as a result, and also that the applicant subjectively fears harm to himself and his family through potentially being unable to find work in Malaysia on his return to Malaysia due to the general economic situation in Malaysia. The Tribunal also accepts that the applicant subjectively fears that any inability by him to find work would be increased because of his age and his health condition and his lack of up-to-date computer skills. The Tribunal also accepts that objectively the applicant would be likely to suffer economic difficulties on his return to Malaysia, including struggling to find work on his return to Malaysia and including struggling to be able to support his family as a result, at least initially on his return to Malaysia, and that his age and his serious health condition and his lack of up-to-date computer skills will likely heighten or increase these difficulties for him on his return.
38. However, the Tribunal further finds that the harm which the applicant would suffer through being unable to find work and support his family, as likely compounded by his age and health and lack of current computer skills, would essentially and significantly be the result of the general economic and employment forces operating on the applicant’s own particular situation and circumstance.
39. The applicant does not claim that these economic and job-related difficulties would be the result of persecutory conduct of the applicant by others, and the Tribunal is not otherwise satisfied that the essential and significant reason for the economic and job-related difficulties which are likely to be faced by the applicant, and which are likely to be increased because of his age and health condition and his lack of up-to-date computer skills, would be persecutory conduct directed at the applicant for the essential and significant reason of his race, religion, nationality, membership of a particular social group or his political opinion. The Tribunal accordingly is not satisfied that s5J(1)(a) of the Act is met.
40. In considering whether the applicant instead meets the Complementary Protection criterion under s36(2)(aa) for this same economic and job-related harm, which is likely to be heightened by the applicant’s age and his health condition and his lack of up-to-date computer skills, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. Significant harm is exclusively defined in s36(2A) of the Act as follows:
(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.
41. An intention to inflict the relevant harm is specifically required by the Act under further legislative definitions of ‘torture’, of ‘cruel or inhuman treatment or punishment’, and of ‘degrading treatment or punishment’. Additionally, the Australian courts have found that an intentional act or omission is required for an arbitrary deprivation of life[2].
[2] EZC18 v MHA [2019] FCA 2143
42. However, the Tribunal does not accept that any economic and job-related suffering that the applicant would experience in Malaysia, which is likely to be compounded by his age and his health condition and his lack of up-to-date computer skills, would amount to the applicant being subjected to torture intended to cause him severe pain or suffering, or to him being subjected to cruel or inhuman treatment or punishment intended to cause him pain or suffering, or to him being subjected to degrading treatment or punishment intended to cause him extreme humiliation. Nor does the Tribunal accept that it would amount to the arbitrary deprivation of the applicant’s life through an intentional act or omission by a third party, or to the death penalty being carried out on him.
43. For these reasons, the Tribunal does not accept that that any economic and job-related suffering which the applicant might experience if he must return to Malaysia, would meet the definition of ‘significant harm’ as that term is exclusively defined in s.36(2A). The Tribunal accordingly finds that s36(2)(aa) is not met in relation to any economic and job-related suffering.
Harm through having to be treated for his cancer condition in Malaysia
44. At hearing, the applicant also claimed that he cannot return to Malaysia because he is very concerned about the medical system in Malaysia through which his own father had had a very bad experience, and he knows that he could receive better and proper treatment far more quickly in Australia than in Malaysia.
45. In considering whether the applicant meets eligibility requirements as a refugee in relation to the applicant’s fear of harm through being treated for his cancer condition in the Malaysian health system, if he must return to Malaysia, among other requirements the Tribunal must be satisfied that the harm feared by the applicant is harm resulting from persecutory conduct directed at the applicant for the essential and significant reason of his race, religion, nationality, political opinion, or his membership of a particular social group: s5J(1)(a) of the Act refers.
46. The Tribunal accepts the applicant’s claims that he would likely receive in Malaysia a lesser standard of medical treatment for his serious health condition than he would likely receive Australia, including also relating to the timeliness of that treatment. The Tribunal also accepts that this lesser standard of medical treatment for his cancer condition might seriously negatively affect the results and efficacy of his medical treatment when compared to the treatment which he would likely receive in Australia, which might result in significant additional pain and suffering and expense for the applicant, and possibly even in his death or a significantly shortened lifespan.
47. However, and despite the potential life and death harm which the Tribunal accepts might be faced by the applicant, there is nothing before the Tribunal to suggest that this medically-related harm feared by the applicant is persecutory harm which would be directed at him by a third party for the essential and significant reason of his race, religion, nationality, political opinion, or his membership of a particular social group. Accordingly, the Tribunal is not satisfied that s5J(1)(a) of the Act is met in relation to this medically-related harm or suffering.
48. In considering whether the applicant instead meets the Complementary Protection criterion under s36(2)(aa) for this same harm, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
49. As above, an intention to inflict the relevant harm is specifically required by the Act under further legislative definitions of ‘torture’, of ‘cruel or inhuman treatment or punishment’, and of ‘degrading treatment or punishment’. Additionally, the Australian courts have found that an intentional act or omission is required for an arbitrary deprivation of life[3].
[3] EZC18 v MHA [2019] FCA 2143
50. However, the Tribunal does not accept that any medically-related harm or suffering which the applicant would experience in Malaysia as a result of his being treated in the Malaysian health system, would amount to the applicant being subjected to torture intended to cause him severe pain or suffering, or to him being subjected to cruel or inhuman treatment or punishment intended to cause him pain or suffering, or to him being subjected to degrading treatment or punishment intended to cause him extreme humiliation. Nor does the Tribunal accept that it would amount to the arbitrary deprivation of the applicant’s life through an intentional act or omission by a third party, or to the death penalty being carried out on him.
51. For these reasons, the Tribunal does not accept that that any medically-related harm or suffering which the applicant might experience as a consequence of his return to Malaysia, would meet the definition of ‘significant harm’ as that term is exclusively defined in s.36(2A). The Tribunal accordingly finds that s36(2)(aa) is not met in relation to this harm or suffering.
Mental harm through fear of economic and health-related suffering
52. At hearing, the applicant also claimed that he cannot return to Malaysia because he fears mental harm to himself through his fear of economic-related suffering to himself and his family, and through his fear of health-related suffering for himself through being treated in the Malaysian health system.
53. In considering whether the applicant meets eligibility requirements as a refugee in relation to the applicant’s fear of mental harm, among other requirements the Tribunal must be satisfied that the mental harm feared by the applicant is harm resulting from persecutory conduct directed at the applicant for the essential and significant reason of his race, religion, nationality, political opinion, or his membership of a particular social group.
54. The Tribunal accepts that the applicant subjectively fears mental harm to himself related to his fear of both economic and health-related suffering. However, there is nothing before the Tribunal to suggest that this mental harm feared by the applicant is persecutory harm which would be directed at him by a third party for the essential and significant reason of his race, religion, nationality, political opinion, or his membership of a particular social group.
55. In considering whether the applicant instead meets the Complementary Protection criterion under s36(2)(aa) for this same mental harm, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
56. As above, significant harm is exclusively defined in s36(2A) of the Act, and as above an intention to inflict the relevant harm is specifically required by the Act under further legislative definitions of ‘torture’, of ‘cruel or inhuman treatment or punishment’, and of ‘degrading treatment or punishment’. Additionally, the Australian courts have found that an intentional act or omission is required for an arbitrary deprivation of life[4].
[4] EZC18 v MHA [2019] FCA 2143
57. However, the Tribunal does not accept that any mental harm which the applicant would experience in Malaysia as a result of his fear of both economic and health-related harm, would amount to the applicant being subjected to torture intended to cause him severe pain or suffering, or to him being subjected to cruel or inhuman treatment or punishment intended to cause him pain or suffering, or to him being subjected to degrading treatment or punishment intended to cause him extreme humiliation. Nor does the Tribunal accept that it would amount to the arbitrary deprivation of the applicant’s life through an intentional act or omission by a third party, or to the death penalty being carried out on him.
58. For these reasons, the Tribunal does not accept that that any mental harm which the applicant might experience as a consequence of his return to Malaysia, would meet the definition of ‘significant harm’ as that term is exclusively defined in s.36(2A). The Tribunal accordingly finds that s36(2)(aa) is not met in relation to any metal harm.
Harm through multil-level marketing scheme investors & from new government followers
59. In his protection visa application, the applicant stated that he feared harm from investors whom he had recruited into a failed multi-level marketing scheme, if he must return to Malaysia. However, at hearing the applicant gave evidence to the Tribunal that his statements in his protection visa application form relating to the multi-level marketing scheme were not correct and that they had been added by his migration agent to strengthen his eligibility for a protection visa. The applicant further told the Tribunal that he had never been involved in recruiting any investors into a failed multi-level marketing scheme, and that he did not fear harm on his return to Malaysia from any such investors.
60. The Tribunal gives weight to this evidence given by the applicant at hearing before the Tribunal, and the Tribunal finds that the applicant was never involved in any multi-level marketing scheme, and also that he does not fear any harm from investors in any multi-level marketing scheme if he must return to Malaysia.
61. In considering whether the applicant meets eligibility requirements as a refugee in relation to the multi-level marketing scheme investors referred to by the applicant in his protection visa application, among other requirements the Tribunal must be satisfied that the applicant subjectively fears serious harm from those investors if he must return to Malaysia: s5(1)(a) of the Act refers.
62. However, given the Tribunal’s above finding that the applicant does not fear harm from investors in any multi-level marketing scheme, the Tribunal finds that s5(1)(a) of the Act is not met in relation to such investors.
63. In considering whether the applicant instead meets the Complementary Protection criterion under s36(2)(aa) due to harm from multi-level marketing scheme investors, among other requirements the Tribunal must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk that he will suffer significant harm.
64. However, the Tribunal finds that the only evidence before the Tribunal in relation to any future harm to the applicant from multi-level marketing scheme investors was evidence given by the applicant in his protection visa application form. In these circumstances, and given also that the Tribunal has accepted the applicant’s oral evidence to the Tribunal at hearing that he was never involved in recruiting any investors into a failed multi-level marketing scheme, and that his written claims about the investors were not correct, and that he did not fear harm on his return to Malaysia from any such investors, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm from multi-level marketing scheme investors if he must return to Malaysia.
CONCLUSIONS
65. 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 s36(2)(a).
66. Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa). 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 s36(2)(aa).
67. There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Tribunal finds that the applicant does not satisfy the criteria in s36(2).
DECISION
68. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 30 April 2024.
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
0
2
2