1916033 (Refugee) - [2024] ARTA 94

1916033 (Refugee) [2024] ARTA 94 (29 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number:1916033

Tribunal:Tina Guthrie
Date:29 November 2024

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 29 November 2024 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – threats from family members – fear of physical assault – ostracisation from family – employment – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIMIA v VBAO of 2002 (2004) 139 FCR 405
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 2019 which was notified to the applicant on 18 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is now [age] years of age. 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 information provided by the applicant did not provide a sufficient basis to satisfy the delegate that the applicant will face a real chance of persecution under s 5J(1)(b) of the Act on return to Malaysia. The delegate was not satisfied that there is a real chance the applicant will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) in the receiving country. The delegate found that there is no real chance the applicant would suffer serious harm for reasons of her loneliness, unmarried status, depression and false accusations from family members regarding a claimed debt. The delegate also found that there was no real risk of the applicant facing significant harm as defined in s 36(2A) if she returned to Malaysia in the foreseeable future. The delegate concluded that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2) of the Act.
The applicant appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Evidence before the Department
Identification documents
The applicant provided the Department with a certified copy of her Malaysia Identity Card (or MyKad). The applicant also provided the Department with a certified copy of her passport issued in Malaysia.
Application for a protection visa
The application for a protection visa completed by the applicant was stamped received by the Department on 14 September 2018. The application states that the applicant left Malaysia [in] August 2017. The applicant states that her father, [and specified family members] reside in Malaysia.
The applicant completed her education in [specified year], aged [age] years at the [College 1]. She worked at [Employer 1] from [year] to 2011 as [an occupation 1] earning 4,800 MYR per month. From 2012 to June 2017, she operated her own business generating a monthly salary of 5,000 MYR per month.
The applicant provided the following reasons for why she left Malaysia:
I came from a broken family since I was young. Father divorced my mother and siblings unsupported. My mother died in 2005. Siblings already have their own family. Each of them has lived their own lives. So my needs and virtues are badly ignored. As though I was not in need anymore. I was also evicted from my family and got out from the house and went anywhere and I chose Australia as my refuge.
Why I choose Australian, because it is peaceful country in terms of providing and promise a good security system safe haven and also freedom. No racial tension and it is a free country.
The applicant stated in her application that she had experienced the following harm in Malaysia:
Due to I am [age] years old, single and no one is taking care of me and alone in the house, it may cause psychological harm, depression and mental torture in future. I’ve received multiple threats from my own siblings that have accused me for not settling the debt RM [amount] that I have never made.
The applicant stated in her application that she feared the following may happen to her if she returned to Malaysia:
My family will always threaten me regardless. They also alienated me and declared I am not a part of their family anymore.
The applicant provided the following details about who would harm or mistreat her and why she thought this would happen if she returned to Malaysia:
Due to I am [age] years old, single, no body is taking care of me and alone in the house, it may cause psychological harm, depression and mental torture in the future.
I feel so belittled and I am so vulnerable to my very own family. I feel afraid to lodge and report since all my family comploting (sic) against myself I don’t think I could thrive in those situation in a long run.
The applicant repeated the last paragraph as the reason why she did not think the authorities in Malaysia can and will protect her if she goes back to Malaysia.
Delegate’s decision
As stated earlier in these reasons, the delegate decided not to grant the applicant a protection visa on 12 April 2019 with notice of the decision being sent to the applicant on 18 June 2019.
Evidence before the Tribunal
Application for review
The applicant applied to the Tribunal on 19 June 2019, for review of the delegate’s decision. The applicant lodged a copy of the delegate’s decision with the application for review.
Response to hearing invitation
The applicant completed and returned a ‘Response to hearing invitation’ form dated 12 June 2024. The applicant did not request that the Tribunal take oral evidence from any witness. The applicant did not provide any additional documents upon which she wished to rely.
Movement records
Consistently with the information contained in the delegate’s decision, the movement records obtained by the Tribunal indicate that the applicant was granted a tourist visa for travel to Australia on 8 August 2017. The applicant’s visitor visa expired on 17 November 2017. Consistently with the applicant’s application for a protection visa the applicant arrived in Australia [in] August 2017.
Tribunal hearing on 18 July 2024
The applicant appeared at the Tribunal hearing on 18 July 2024 and spoke to the Tribunal with the assistance of an interpreter in the Malay and English languages. The applicant gave evidence that she had been threatened by one of her brothers. During the hearing the applicant read out the most recent messages she had received from him. Time was allowed for the applicant to lodge copies of those messages.
Documents lodged after the hearing
On 22 July 2024, the applicant provided a copy of the text messages she received from her brother that she had read to the Tribunal during the hearing. The messages and salient parts of the applicant’s evidence are further discussed below under the heading ‘Reasons and Findings’.
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) (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.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
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
For the following reasons, I have concluded that the decision under review should be affirmed. Overall, I found the applicant’s evidence to be truthfully given.
Receiving country
I am satisfied, based on the certified copy of the applicant’s identity card and passport both issued in Malaysia, that the applicant is a national of Malaysia. Therefore, Malaysia is the receiving country for the purposes of the Tribunal’s assessment of the applicant’s claims for protection.
Arrival in Australia and lodgement of application for a protection visa
Consistently with the applicant’s application for a protection visa and the movement records obtained by the Tribunal, I find that the applicant arrived in Australia [in] August 2017. Consistently with the delegate’s decision and the movement records, I find that the applicant travelled to Australia on a tourist visa which was granted on 8 August 2017 and expired on 17 November 2017. I also accept the applicant’s oral evidence that she travelled to Australia with a friend who returned to Malaysia after three months.
I find that the applicant lodged an application for a protection visa on 13 September 2018.
Personal background
I accept as truthfully given the applicant’s evidence relating to her family history, background and personal circumstances. The applicant’s family dynamics and her role in the family over the years are relevant to her claims for protection. The applicant is [an age] year old woman. She was born in [Town 1], Seberag Prai, Penang, Malaysia. She has [specified] siblings, [genders and ages] respectively.[1] Her parents divorced when she was in primary school. She and her siblings resided with their mother after the divorce. She was very close to her mother who passed away in 2005. The applicant was [age] years old at the time of her mother’s death and the applicant took over her mother’s role in caring for her younger siblings. [She] nursed her mother when she had a stroke in [year]. The applicant purchased her first home in [year] in [Town 2], Kedah in which her family members all resided. She subsequently sold that house.
[1] [Fewer siblings] were disclosed in the application for a protection visa.
The applicant worked as [an occupation 1] for [Employer 1] in Penang from [year] to 2011 and then operated her own laundry business in Kedah from 2012 until June 2017 when she sold the business with a plan to travel to Australia.
The applicant’s father remarried. She cared for her father for 15 months or so when she was waiting for her laundry shop to be ready. The applicant’s stepmother did not want to look after him so he came to live with the applicant. The applicant’s father passed away in 2023.
The applicant purchased another property in 2004 or thereabouts which she still owns in [Town 2], Kedah.[2] She owns that property outright as she was able to withdraw money from her employment fund upon turning [age] years of age. She also owns a car in Malaysia. I regard her home area as [Town 2], Kedah where her property is located.
[2] Application for protection visa, response to Question 35 is the full address of that property.
In Australia the applicant has been employed picking fruit. She earns she said ‘not even $300 per week’ but she is happy in Australia.
Claims for protection
The applicant’s oral evidence relating to her claims for protection was essentially consistent with the relevant section of her application for a protection visa. The applicant is heartbroken about how her family members have treated her, particularly given that she raised and educated them and let them marry. She feels they do not care about her. When she opened her laundry business using money she received when she finished working at [Employer 1] her family members did not want to help her. Her family members do not take her advice. She felt alone in Malaysia as they lived their own lives. I asked her what she had meant in her application about being ‘evicted’ from her family. The applicant responded that she meant that they do not listen to her and had rejected her. The applicant claims that she received threats her family members. However, when pressed to disclose the threats, she focussed on the behaviour of one of her [brothers].
The brother who is the main focus of her claims for protection had been in the army. He came to stay with her after he left the army. He has [number of children]. They were messy and she was not comfortable in her home. In the end she said they could stay at her home, and she would move out. He ended up renting a place close to where her house is situated. Her brother wanted to open a restaurant and she told him not to do that. He did not accept her advice. She recounted that when she visited him at the restaurant, he raised his voice at her in front of customers.
The applicant gave the following evidence regarding why her brother claims she owes him money. Her brother received some money when he retired from the army. When she bought her house, she asked him for 25,000MYR to help her purchase it. The agreement was that she would repay him when she turned [age] years and could withdraw the funds from her employment fund. She said that her brother never gave her the money and she ended up borrowing it from a friend. She repaid her friend when she withdrew 200,000MYR from her employment fund.
Her brother renewed the registration of the laundry business for approximately 20,000MYR. She said she did not ask him to do so. He obtained some government funding to purchase a washing machine by using her business’s certificate without her permission. She believes the washing machine cost about 35,000MYR. He sold it a year later. She does not know how much he received upon its sale. She said that her brother betrayed her. She would not have accepted the washing machine had she known what he had done.
Her evidence was that her brother would say that he was trained to kill people and raise his voice. She would keep quiet when he did so. She feels he does not care about her. He and his wife talked about her in Malaysia. They told people that she owes them money which the applicant says is untrue. She did not give him any money in Malaysia despite his requests.
The rental on the premises for the laundry continued to increase and she did not want to rely on her family members, so she sold the business and decided to travel to Australia with her friend. She felt very stressed at the time. There was no one in Malaysia she could confide in. Her friend has since returned to Malaysia.
While her claims for protection include ostracisation from her family members, the applicant gave evidence that three or four years ago, her siblings started to reach out to her. She said that ‘maybe they miss her’. She does not know. She does not miss them. While they knew she was travelling to Australia, she is not sure how her family located her contact number but they kept contacting her. [One] brother suffered ill health and now resides in her house with his partner and [children] rent free. He moved into her house in 2023. She is in contact with the wife of another of her brothers. Her sister-in-law told her that they had had a similar experience as the applicant with the brother who left the army. She said they ‘now know who is right and who is wrong’. It involved a car and a car loan. She believes that despite those circumstances her other brothers do not support her.
Her sister contacts her to make sure she is okay and say hello. The applicant says she could not live near her sister because her sister has a busy life and does not want to depend on any of her family members in her old age. She said that if she returned to Malaysia she would live in an ‘old folks home’ away from her family members. I accept that the behaviour of the applicant’s family members towards her and her belief that they are ungrateful and do not care about her or respect her caused the applicant emotional and mental distress when she was living in Malaysia. I also accept, based on her evidence that if she returns to Malaysia now or in the reasonably foreseeable future, she will limit her contact with her siblings as much as possible.

During the hearing I discussed the relevant legislative provisions which I must apply. I discussed with the applicant that I might be concerned that any harm she would experience upon return to Malaysia would not amount to serious or significant harm. I outlined the definition of significant harm in s 36(2A) of the Act and the instances of serious harm in s 5J(5) of the Act and explained that the latter provision did not provide an exhaustive definition of serious harm for the purposes of the refugee criterion. The applicant was given an opportunity to provide any evidence she wished to provide regarding the harm she claims she will suffer if she returns to Malaysia and whether and how that harm amounts to serious harm or significant harm.
The applicant does not claim that she has suffered any physical harm or physical mistreatment in Malaysia. I find that she was not physically harmed or mistreated in Malaysia. She described the brother who claimed she owed him money raising his voice at her in public when she visited him at his restaurant. I accept that the applicant’s brother has raised his voice at her in public. I accept that he stated in anger that he had been trained to kill people. However, it was not the applicant’s evidence that her brother threatened to kill her. I have taken into account the applicant’s age, her small stature and gender with her evidence regarding her interactions with her brother. I accept that her brother’s past behaviour in raising his voice was intimidatory. However, I do not accept that the applicant’s brother has threatened to kill the applicant in the past. She described ‘busy bodies’ in her home area asking her about the money issues with her brother. I accept that the applicant’s brother told others in her home area that she owed him money. I accept that that caused embarrassment and stress to the applicant at the time.
While I do not have an official translation of the text messages the applicant provided to the Tribunal, I accept, as truthful, the applicant’s oral evidence of what they state. She said that the first message was received on 26 January 2024. He said he needed 10,000MYR for his sons’ education with one in college and the other in secondary [school]. Her response to the first message was that ‘if you want to talk to me talk to my lawyer’. On 2 July 2024 he sent her a message asking to borrow money for [equipment] for his younger son. I accept that the applicant’s brother has asked to borrow 10,000MYR from her to help fund his children’s education costs. I find that the messages do not contain any threats of violence or harm to the applicant. I further find that the messages do not contain any intimidatory language. Given the recency of the text messages requesting money from the applicant, I accept that the applicant’s brother will request money from the applicant if she returns to Malaysia in the foreseeable future.
The applicant has not given her brother the money he requested. She did not give him money in Malaysia when he claimed she owed him a significant amount of money. She did not give him any money despite his raising his voice and telling others that she owed him money. The applicant’s brother did not harm her in Malaysia despite her refusal and failure to pay.
Based on the applicant’s evidence regarding her more recent contact with her siblings, I find that there has been a softening of their approach to the applicant. In recent times, the applicant has allowed [one] brother to live in her house rent free. Further another brother has had reason to be upset with the brother who is the focus of the applicant’s claims for protection. Her sister contacts her to see how she is. She also speaks to a sister-in-law. I have found that the applicant was not physically harmed or mistreated in Malaysia by anyone. The applicant has not given any money to her brother despite his recent requests. I do not accept that the applicant has been recently threatened in any way by her brother or any of her siblings. I do not accept that the applicant will be physically harmed or mistreated by any of her siblings if she returns to Malaysia.
The applicant’s evidence is that she would not engage with her family if she returned to Malaysia. I accept that she will distance herself from her family members as much as possible if she returns to Malaysia. I find that she will limit her contact with them if she returns to Malaysia in the foreseeable future.
While the applicant claims that she could not face the people in her hometown, it has now been seven years since the applicant left Malaysia. Her relationship with her family members has softened. While the applicant remains disappointed by her [siblings’] past treatment of her, she will limit her engagement with her family members if she returns to Malaysia. In those circumstances, I do not accept that the applicant’s relationship with her siblings will be of the same level of interest to the ‘busy bodies’ as it was seven years ago. I accept that some people in her community will be nosey about her circumstances if they learn she has returned to Malaysia.
The applicant’s evidence is that if she returns to Malaysia, she would be alone, old and jobless. In relation to her claim that she would be alone, her evidence was that she remains in contact with a friend in Malaysia. I find that the applicant has a friend in Malaysia that could offer a level of emotional support if she returns to Malaysia. While I have accepted that she will limit her contact with her siblings, her sister contacts her to see if she is well and she also speaks to a sister-in-law. I do not accept that the applicant has no supports in Malaysia.
According to the most recent DFAT Country Information Report, the World Bank classifies Malaysia as an upper middle-income, export-oriented economy.[3] 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 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.[4] In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic.[5] Discrimination against women is banned under the Constitution. Nevertheless, discrimination on the basis of sex, and inequality, persist for women and girls in Malaysia. Although women participate widely across various aspects of Malaysian society, some conservative cultural and religious practices continue to limit their choices. According to the World Bank, female labour force participation rate was 53 per cent in 2022, up from 43 per cent in 2008. In-country sources told DFAT that despite legal protections, women sometimes received less pay than men for equal work.[6] Based on that country information, I am satisfied that employment is available in Malaysia but that women sometimes receive less pay than men for equal work. I accept poverty rates are higher in areas such as Kedah which is the applicant’s home area.
[3] DFAT Country Information Report: Malaysia (24 June 2024), [2.7].
[4] DFAT Country Information Report: Malaysia (24 June 2024), [2.8].
[5] DFAT Country Information Report: Malaysia (24 June 2024), [2.10].
[6] DFAT Country Information Report: Malaysia (24 June 2024), [3.111].
Based on the relevant country information I find that Malaysia has a well-established universal health care system which is accessible to most of the population. Health facilities are generally available within a five-kilometre radius of urban centres. Healthcare is generally affordable.[7] Mental health services are a notable gap in Malaysia’s otherwise strong healthcare system. In-country sources reported that mental healthcare was hard to access, expensive and ‘only for the privileged’. There is significant stigma attached to mental health issues in Malaysia, though this appears to be declining in urban areas.[8]
[7] DFAT Country Information Report: Malaysia (24 June 2024), [2.11].
[8] DFAT Country Information Report: Malaysia (24 June 2024), [2.14].
When asked whether she could access any social welfare in Malaysia, the applicant said she did not think that she would qualify. She also said that she would work because she is healthy. She wants to work. She might sell her house to support herself. She could work as a cleaner. Her evidence was that she is concerned that if she returns to Malaysia, she may again experience stress and isolation which could cause her to suffer a mental health condition. She also said that the stress might lead to a heart attack. The applicant’s evidence is, and I find that the applicant has not been diagnosed with any mental health condition nor sought any treatment for the stress she says she experienced in Malaysia. Her evidence is and I find that the applicant is physically well. I regard the applicant’s claim that due to the stress she will experience upon return to Malaysia she might suffer a heart attack to be speculative.
I find that the applicant is physically well and able to work. While she has not been earning much income fruit picking in Australia, she has been supporting herself with that work which is physical work. I find that the applicant has not been diagnosed with any mental health condition. I find that the applicant is healthy. I find that the applicant has financial assets in Malaysia which she could use to support herself if she was unable to find employment upon return to Malaysia. I find that the applicant has the capacity to work. I accept the applicant’s evidence that she could work as a cleaner. I accept based on the country information that as a woman the applicant may receive less pay than a man for equal work. I accept that, given the period of time the applicant has resided in Australia, if the applicant returns to Malaysia, she will experience a level of isolation as she resettles.
When asked about her claims for protection related to racial tension the applicant responded that she feels less safe in Malaysia as compared to Australia where she says you don’t need to lock your door. I have considered relevant country information relating to the security situation in Malaysia including crime in Malaysia as well as racism in Malaysia. The applicant is an ethnic Malaysian. DFAT assesses that ethnic Malays do not face negative official discrimination on the basis of their ethnicity.[9] Further, the security situation is generally stable. Petty crime is common including bag-snatching, pickpocketing and residential burglaries.[10] I find the applicant has not experienced any racial discrimination in Malaysia. I do not accept that the applicant will experience any official discrimination on the basis of her ethnicity. I find that the applicant has not been a victim of any petty crime in Malaysia.
[9] DFAT Country Information Report: Malaysia (24 June 2024) at [3.7].
[10] DFAT Country Information Report: Malaysia (24 June 2024) at [2.28].
Does the applicant satisfy the refugee criterion for protection?
Based on the findings of fact I have made and taking into account the relevant country information and for the reasons given above, I am satisfied that there is a real chance the applicant will suffer some mental distress if she returns to live in her home in [Town 2] District, Kedah, Malaysia now or in the reasonably foreseeable future due to her family dynamics and the impacts of those dynamics and given the length of time she has been in Australia.
In relation to her reliance on petty crime and racial tension, based on the findings of fact I have made that the applicant has not been a victim of any such crime in the past and that I do not accept that the applicant will experience official discrimination on the basis of her ethnicity and that she has not experienced any such discrimination in the past, I am not satisfied that the applicant has a well-founded fear of persecution based on that claim as s 5J(4)(c) of the Act is not satisfied in the circumstances of the applicant’s case.
While I have found that the applicant will limit her contact with her family members if she returns to Malaysia, I am satisfied that the applicant will suffer some mental distress both in terms of the interactions she will inevitably have with her family members, ongoing disappointment and distress about how they treated her in the past and because of her brother’s requests for money. I also accept that there may be some people in her home area who will be nosey about her business upon her return to Malaysia. I also accept that she will experience a level of isolation and stress as she resettles in Malaysia. I have found that the applicant does not have a mental health condition. I have found that the applicant is physically well. I have found that the applicant is able to work. I have found that the applicant has an asset in the form of property that she could use to support herself if necessary. I do not accept that the applicant has no supports in Malaysia.
I have considered the applicant’s claims that she would be less safe in Malaysia due to crime and racial tension as well as the relevant country information relating to those matters and the security situation in Malaysia generally.
I am not satisfied that the harm the applicant will suffer if she returns to Malaysia in the reasonably foreseeable future is ‘serious harm’ for the purposes of s 5J(4)(b) of the Act. For the purposes of s 5J(4), s 5J(5) provides that the following non-exhaustive list are instances of serious harm: (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 persons capacity to subsist.
I have found that the applicant has an asset in the form of her property which she could use to support herself. I have found that the applicant has the capacity to earn an income. I do not accept that the applicant will experience significant economic hardship that threatens her capacity to subsist, or a denial of access to basic services where the denial threatens her capacity to subsist. I do not accept that the applicant will experience a denial of capacity to earn a livelihood of any kind where the denial threatens her capacity to subsist.
The applicant has not experienced any physical harm in the past. A ‘threat’ for the purposes of s 5J(5)(a) would not normally be constituted by a mere declaration of intent.[11] In this case, I have not accepted that the applicant’s brother or any other person has threatened to kill the applicant. Even if I were to accept that the applicant’s brother’s words that he had been trained to kill people amounted to a threat to harm the applicant, I do not consider that the applicant’s brother intended to physically harm the applicant. I do not accept that the applicant’s brother will physically harm the applicant in any way. I do not accept that the applicant’s life or liberty will be threatened if she returns to Malaysia now or in the reasonably foreseeable future. I do not accept that the applicant will suffer any physical ill-treatment or physical harassment for any reason if she returns to Malaysia in reasonably foreseeable future.
[11] MIMIA v VBAO of 2002 (2004) 139 FCR 405, Marshall J at [40]-[41].
The term ‘serious harm’ is not exhaustively defined in s 5J(5) of the Act. Serious harm can include serious mental harm. Examples of serious mental harm involve the conduct of mock executions, or threats to the life of people very closely associated with the person seeking protection.[12] I have accepted that the applicant will experience mental distress for a range of reasons if she returns to Malaysia in the reasonably foreseeable future. I have found that the applicant’s brother’s behaviour in the past in raising his voice at her was intimidatory given the age discrepancy and her small stature and gender. However, I have also found that the most recent requests for money made by the applicant’s brother do not contain any threats of harm or intimidatory language. I have also found that the applicant does not have a mental health condition. I have also found that the applicant will limit contact with her siblings if she returns to Malaysia. I have also found that there has been a softening of the applicant’s family members approach to her in recent years. I am not satisfied that the applicant’s personal attributes and her circumstances as found in these reasons are such that the mental distress she will experience if she returns to Malaysia now or in the reasonably foreseeable future reaches the level of serious harm for the purposes of s 5J(4)(b) of the Act.
[12] Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 at [25].
The applicant does not have a well-founded fear of persecution under s 5J of the Act. The applicant is not a refugee as defined in s 5H of the Act. The applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
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).
Based on the findings of fact I have made and taking into account the relevant country information and for the reasons given above, I am satisfied that there is a real risk the applicant will suffer some mental distress if she returns to live in her home in [Town 2] District, Kedah, Malaysia in the reasonably foreseeable future due to her family dynamics and the impacts of those dynamics and because of the time she has been in Australia. While I have found that the applicant will limit her contact with her family members if she returns to Malaysia, I am satisfied that the applicant will suffer some mental distress both in terms of the interactions she will inevitably have with her family members, ongoing disappointment and distress about how they treated her in the past and because of her brother’s requests for money. I also accept that there may be some people in her home area who will be nosey about her business upon her return to Malaysia. I also accept that she will experience a level of isolation and stress as she resettles in Malaysia. I have found that the applicant does not have a mental health condition. I have found that the applicant is physically well. I have found that the applicant is able to work. I have found that the applicant has an asset in the form of property that she could use to support herself if necessary.
I am not satisfied that the harm the applicant will experience if she returns to Malaysia in the foreseeable future meets the definition of ‘significant harm’ in s 36(2A) of the Act. I do not accept that the applicant will be arbitrarily deprived of her life. I do not accept that the death penalty will be carried out on her or that she will be subjected to ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as those terms are defined in s 5(1) of the Act. I am not satisfied that her brother’s requests for money and the mental distress she will experience upon return will cause humiliation that is extreme so as to satisfy the definition of ‘degrading treatment or punishment’. I do not accept that her brother’s requests for money and the mental distress she will experience upon return to Malaysia will cause severe pain or suffering so as to meet the definition of ‘torture’. I am not satisfied that her brother’s requests for money and the mental distress she will experience upon return to Malaysia will inflict severe pain or suffering or pain or suffering that could be reasonably regarded as cruel or inhuman in nature for the purposes of the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Act.

I have also considered the applicant’s claims that she would be unsafe in Malaysia due to crime and racial tension. I have taken into account the country information relevant to those claims and the information relating to the security situation in Malaysia generally. I am not satisfied that there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act if she returns to Malaysia for any reason upon which the applicant relies.
I have considered the applicant’s claims for protection individually and cumulatively. I am not satisfied 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
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).
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).
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 under review.
Date of hearing: 18 July 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
…