1913055 (Refugee)

[2024] AATA 4462

1913055 (Refugee) [2024] AATA 4462 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913055

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Raymond Smith

DATE:10 October 2024

PLACE OF DECISION:  Perth

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

Statement made on 10 October 2024 at 2:11pm

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – applicant declined the hearing invitation – lack of detail provided by the applicant about her economic and financial circumstances – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 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 citizen of Malaysia, applied for the visa on 11 April 2019. The delegate refused to grant the visa for the following reasons:

   a.The applicant was not a person in respect of whom Australia had protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Act.

   b.The applicant was not a member of the same family unit as a non-citizen in respect of whom the Minister was satisfied Australia had protection obligations and who held a protection visa of the same class as that applied for by the applicant: s 36(2)(b) and s 36(2)(c) of the Act.

3. The applicant declined an invitation to appear before the Tribunal to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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–5LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), 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.

   CLAIMS AND EVIDENCE

10. The issues in this case are whether:

    a.the applicant has a well-founded fear of persecution in Malaysia for reasons of race, religion, nationality, membership of a particular social group, or political opinion and, if not,

    b.there is a real risk that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, she will suffer significant harm.

11. For the following reasons, I have concluded that the decision under review should be affirmed.

    The applicant’s claims

12. The applicant’s claims, articulated in her protection visa application dated 11 April 2019, can be summarised as follows:

    a.The applicant was seeking protection and could not return to Malaysia.

    b.The applicant left the country because she had difficulty surviving, and the scandal there affected her insurance.

    c.The applicant was an orphan, there were increasing taxes in Malaysia and the applicant couldn’t find a job.

    d.The applicant had no income except for a little insurance.

    e.The applicant did not know where to go for help and did not want trouble.

    f.The applicant changed states three times with her insurance payment and food money, but all states were the same.

    g.If the applicant returned to Malaysia, she would have no money to support her life.

    h.The economy in Malaysia had slowed because of scandal.

13. The applicant indicated that she had been born in Kota Kinabalu, Sabah in [year], had never married and was a Malaysian citizen. The applicant indicated that she her ethnic group was ‘Asian’ and that she was a Buddhist.

14. The applicant indicated she was making her own claims for protection, had not received assistance in completing her protection visa application form and would not need an interpreter.

15. The applicant provided a copy of her Malaysian passport to the Department but did not provide any other material in support of her claims.

16. I have taken account of the most recent DFAT country information report on Malaysia,[1] particularly in relation to the politics and the political system, the economy and employment. According to DFAT:

    [1]         Department of Foreign Affairs and Trade, DFAT Country Information Report: Malaysia, 24 June 2024.

    2.3 For almost half a century following independence, Malaysia was governed by Barisan Nasional (BN), a coalition made up of Malay party UMNO (the largest party in BN), with Chinese and Indian-dominated political parties. Following several years of declining popularity, and the multi-billion-dollar 1MDB corruption scandal involving Prime Minister Najib Razak, BN was defeated in the 2018 election by the Pakatan Harapan (PH) coalition. Mahatir Mohamad became Prime Minister, a position he had previously held between 1981 and 2003.

    2.4 The PH coalition became unstable in 2020. Following Mahathir’s resignation in February 2020, Malaysia’s reigning monarch appointed Muhyiddin Yassin as Prime Minister at the head of a new coalition called Perikatan Nasional (PN). Muhyiddin’s government lasted less than a year before he resigned and was replaced by Ismail Sabri Yaakob of UMNO. Ismail in turn struggled to maintain power, eventually resulting in snap elections held in November 2022, which led to a hung parliament.

    2.5 Following entreaties by the King, BN agreed to join the PH coalition under the leadership of former Deputy Prime Minister Anwar Ibrahim. Anwar’s stated priorities include fighting corruption, promoting judicial independence, and improving the economic conditions of ordinary people. The Islamic Party of Malaysia (PAS) won the most seats in the 2022 general election, leading some commentators to warn of a ‘rising wave of Islamisation’ across Malaysia (also referred to as a ‘green wave,’ in reference to the colour representing PAS). PAS also performed strongly in state elections in 2023, winning 49 per cent of votes cast, even while PH retained power in the states it had previously held.

    …

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

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

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

    …

    2.10 In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour…

    …

    2.17 Malaysia is a federal constitutional monarchy. It has a Westminster-style parliamentary system of government, and conducts periodic, multi-party elections. The Prime Minister is the Head of Government and head of the federal cabinet. The King (Yang di-Pertuan Agong) is the Head of State and Commander in Chief of the Armed Forces. A two-thirds parliamentary majority is required to amend the Constitution.

    2.18 Malaysia has 13 states and three federal territories. Federal (bicameral) and state (unicameral) legislatures share legislative power. The federal parliament comprises the Dewan Rakyat (lower house) and the Dewan Negara (upper house). The lower house has 222 members elected for five-year terms in single-seat constituencies. The upper house has 26 members elected by State Legislative Assemblies, four appointed to represent federal territories (with two for Kuala Lumpur), and 44 appointed by the King, on the advice of the Prime Minister, for a maximum of two three-year terms.

    2.19 Each state has a Chief Minister. The federal government directly administers the three federal territories of Kuala Lumpur, Putrajaya and Labuan. Nine of the 13 states have hereditary rulers (eight Sultans and one Rajah), who share the position of King on a five-year rotating basis. Matters pertaining to Islam, including codification of syariah based laws and procedures and their administration, fall under state jurisdiction, with the Sultans being the designated heads of religion in each state. As a constitutional monarch, the King has traditionally remained above politics, however political instability since the general election in 2018 has required the King to become more involved in political affairs. For example, following the hung parliament after the 2022 election, the monarch initially proposed a unity government between Mr Anwar and Mr Muhyiddin, and when this option was refused, chose Mr Anwar to be Prime Minister.

    Consideration

17. The applicant’s Malaysian passport specifies the applicant’s country of nationality as Malaysia. I find that the applicant is a Malaysian citizen.

18. On 14 August 2024, the Tribunal wrote to the applicant, advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 15 August 2024, the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. On 23 August 2024, the Tribunal wrote again to the applicant, inviting her to provide in writing any submissions and evidence that she wished to be considered. The applicant did not respond to the invitation. This matter has therefore been determined on the evidence available to the Tribunal.

19. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

20. Given the lack of detail provided by the applicant about her economic and financial circumstances, and how the political situation in Malaysia impacts upon her, it is not possible to determine the risk to the applicant of her return to Malaysia. I note that according to DFAT, Malaysia has a growing upper-middle income economy with low unemployment and decreasing levels of poverty, and the government has changed since the applicant left; without further details, it is not possible to say whether, in the applicant’s circumstances, there is a real risk of serious or significant harm if she returns to Malaysia. Despite being given the opportunity to appear before the Tribunal and to provide submissions and evidence in writing, the applicant has not provided any further details about her claim.

21. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.

    CONCLUSION

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

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

24. 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

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

    Raymond Smith
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

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

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

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

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

    …

    5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K    Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L    Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    …

    36     Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …