1921246 (Refugee)
[2025] ARTA 736
•3 March 2025
1921246 (REFUGEE) [2025] ARTA 736 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1921246
Tribunal:General Member D Bartlett
Date:3 March 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 03 March 2025 at 2:32pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity – Chinese Malaysian – political and social discrimination – consent to decision without hearing – country information – low-level discrimination possible but no real chance of serious harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
CASES
Chan v MIEA (1989) 169 CLR 379
Luu v Renevier (1989) 91 ALR 39
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
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 29 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Act.
BACKGROUND
The applicant is a [Age]-year-old Chinese Malaysian from the state of Kedah on the Malaysian peninsular.
Procedural History
The applicant visited in Australia in July 2017 and September 2017 before last arriving [in] October 2018. On each occasion the applicant arrived in Australia on a UD-601 Electronic Travel Authority.
On 21 December 2018, the applicant applied for a protection visa. In that application, the applicant gave the following reason for leaving Malaysia
I don’t feel safe anymore in Malaysia as a Chinese, we been discriminated by government and bullied by authorities. Political parties start playing with racial sentiments to gain control over voters. Increase of bribery and crime which make us Chinese a target of racist and hatred.”
While the applicant, in his application, did not leave any answer as to the harm he experienced in Malaysia, he stated that
a)he “may be harm or continuing been discriminated” if he returned to Malaysia.
b)“We have been denied our right over equal opportunities in many aspects.”
c)“The entire country practice the same discrimination”
d)“The Malaysian authorities is corrupted”; and
e)He did not move to another part of the country as “I don’t think it will solve the problem”.
On 29 July 2019 the delegate refused the application for a protection visa.
On 1 August 2019, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision.
On 9 April 2024, the applicant returned a pre-hearing information form sent to him by the AAT. In that form, he was asked whether he wanted to give any more information about his claims for protection or whether there any other reasons why he is afraid to return to his home country. The applicant responded by reproducing the summary of facts the delegate made in the decision of 29 July 2019.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
On 2 December 2024, the applicant was sent a “Notice of Hearing” by the Tribunal, advising the applicant that a Tribunal Member has been appointed to hold a hearing and make a decision about his review. The Notice notified the applicant of a hearing to be heard on 21 January 2025. The Notice requested that the applicant provide all documents he intends to rely on to support his case by 14 January 2025 if he had not already done so.
The Notice also advised the applicant that he may use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing; noting that if he was to request the Tribunal make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in his absence, this does not guarantee the applicant will receive a favourable decision. The Notice requested the applicant read and complete the enclosed ‘Response to hearing notice’ form and return it to the Tribunal within 7 days.
On 26 December 2024, the applicant returned the “Response to hearing notice” form to the Tribunal. In that form, the applicant ticked a box indicating that he “will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing”. Where the applicant was asked if there was any issue that may affect her ability to attend a hearing, and again where she was asked whether she believed that she or another person will experience difficulty in the hearing, the applicant wrote:
I HERE REQUEST THE ART TRIBUNAL TO MAKE A DECISION WITHOUT HEARING INTERVIEW, BUT ART TRIBUNAL PLEASE MAKE A DECSION ON PAPERS. THANKS
On 10 January 2025, the Tribunal wrote to the applicant agreeing to the applicant’s request that a decision be made on the papers without holding a hearing.
Making a decision without a hearing
Under certain circumstances, set out in s 106 of the Administrative Review Tribunal Act 2024 (ART Act), the Tribunal may make a decision in relation to the application without holding a hearing. Those circumstances include that the only parties to the proceeding are the applicant and a non‑participating party to the proceeding or the hearing of the proceeding; s 106(3)(a). The only parties to this matter are the applicant and a non-participating party, being the Minister for Immigration and Multicultural Affairs.
Also required under s 106(3)(b) of the ART Act is that the applicant requests the Tribunal to make its decision without holding a hearing. On 26 December 2024, the applicant requested that the Tribunal make its decision without holding the hearing of the proceedings. That request was clear, unambiguous and consistent with the applicant’s preference not to provide any further information exhibited in his correspondence of 9 April 2024.
The Tribunal must also consider, under s 106(3)(c), whether it appears that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding. The issues for determination in this proceeding are:
a)whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act if returned to their receiving country and if not;
b)whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia Malaysia, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
In this matter, it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of a hearing. The Department has provided a copy of the applicant’s file, which includes the applicant’s identity documents as well as his visa protection application form outlining the basis of the applicant’s claim for protection. The applicant also provided a copy of the Department’s decision to the Tribunal. Based on this information the Tribunal is able to determine the applicant’s identity and receiving country.
The Tribunal is also able to determine the basis of the applicant’s claim for protection and form conclusions, without seeking further evidence or submissions from the applicant, about whether he meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
20. 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.
21. 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.
Mandatory considerations
25. 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
The issue in this matter is whether the applicant is a person to whom Australia has protection obligations under the “refugee criterion” or on “complementary grounds”, or he is a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant was born in Malaysia and is a Malaysian citizen. The Tribunal finds that Malysia is the receiving country for the purpose of his application for protection.
Does the applicant satisfy the refugee criterion for protection?
It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish that claim.[1] Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. The Tribunal is not required to make the applicant’s case for them,[2] nor is it required to accept uncritically allegations made by the applicant.[3] The applicant’s fear of harm is a well-founded fear if there is a real chance the applicant will be persecuted if he were to return to Malaysia.[4] A real chance is a substantial chance, as distinct from a remote far-fetched possibility.[5] The persecution must also involve serious harm.[6]
[1] s 5AAA (2) of the Act
[2] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-70, Luu V Renevier (1989) 91 ALR 39, 45
[3] Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437, 451
[4] s 5J(1)(b) of the Act
[5] Chan v MIEA (1989) 169 CLR 379 at 389
[6] s 5J(4)(b) of the Act
The applicant’s claim for protection is contained in his application of 21 December 2018. In that application, the applicant states that, due to his Chinese ethnicity, he will face discrimination if he returns to Malaysia.
Country information available to the Tribunal refers to the experience of Chinese Malaysians in Malaysia. The country information establishes that Chinese Malaysians, constituting over 20% of the Malaysian population, comprise a high proportion of the Malaysian professional and educated class. The Malaysian Constitution prohibits discrimination against citizens based on religion or race, though there is a perceived bias against Chinese Malaysians being employed in the Malaysian civil service. Malaysia allows primary and high school education to be taught in the Mandarin language, though low-level discrimination hampers Chinese Malaysians’ attempts to gain entry to tertiary education. [7]
[7] DFAT Country Information Report Malaysia, 24 June 2024, Pages 14 to 16
The country information indicates that Chinese Malaysians experience some discrimination in Malaysia. Consistent with the country information referred to above, the Tribunal accepts that the applicant, as a Chine Malaysian, may face harm in the form of low-level discrimination if he returns to Malaysia.
However, the Tribunal does not accept that there is a real chance of serious harm if the applicant returns to Malaysia. While not an exhaustive list, s 5J(5) of the Act provides various instances of serious harm. The Tribunal does not accept that the low level discrimination the applicant, as a Chines Malaysian, would face in Malaysia approaches the severity of the examples contained in s 5J(5) of the Act.
The Tribunal is not satisfied that there is a real chance of serious harm if the applicant were to return to Malaysia. As there is not a real chance of serious harm, the Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
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), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Complementary protection is available to the applicant if 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.
For the reasons given above, the Tribunal accepts the applicant, as a Chinese Malaysian, may endure low level discrimination if he returns to Malaysia. However, the Tribunal does not accept that this is significant harm. This is because the low-level discrimination does not meet the definition of significant harm, which is an exhaustive list in s 36(2A) of the Act.
The Tribunal finds that there is not a real risk of significant harm to the applicant in the reasonably foreseeable future, if he returns to Malaysia.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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
6
0