1922345 (Refugee) - [2024] ARTA 741

1922345 (REFUGEE) [2024] ARTA 741 (11 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1922345
Tribunal:General Member S Memmott
Date:11 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 December 2024 at 10:39am

CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity and religion – Chinese Buddhist – application prepared by agent – no knowledge of written claims and dependence on oral claims and evidence – unpaid loans and support for parents – no past harm or fear of harm and preference to work in Australia – opportunities and potential earnings – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a national of Malaysia, applied for the visa on 21 September 2018. The delegate refused to grant the visa on 2 August 2019.
On 12 August 2019 the applicant applied for review of this decision by the former Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
The Tribunal notes that, in accordance with 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.
Further, the Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT, in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for the purposes of the proceeding after 14 October 2024. Anything done in, or in relation to, the proceeding after 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The protection visa application includes, among other things, the following personal information and migration history concerning the applicant:
·He was born in [Year] in [Suburb], Palau Pinang, Malaysia. He is a citizen of Malaysia and no other country.
·He indicates he speaks, reads and writes the Mandarin language. He lists his ethnicity as Chinese and his religion is Buddhist.
·He lists his relationship status as ‘divorced’. He lists no family members either here or in Malaysia.
·He travelled to Australia [in] July 2018 as the holder of a visitor visa.
A personal statement (undated) of just over 2 pages in length, typed in English, was also submitted to the Department. It sets out a number of claims for protection concerning religious and ethnic discrimination. However, as discussed further below, the applicant gave evidence at hearing that he had no idea what claims had been included in his protection visa application and asked the Tribunal to instead consider his oral evidence.
Supporting documents
The Departmental file includes a copy of the biodata page of the applicant’s passport, issued by Malay authorities in Palau Pinang [in] 2015.
Delegate’s decision
A delegate of the Minister for Home Affairs refused the visa application. The delegate’s decision record cites a range of country concerning the claims advanced in the visa application. Having regard to that information the delegate concluded that the applicant did not have a well-founded fear of persecution, and that there was not a real risk he would be subjected to significant harm.
Claims and evidence before the Tribunal
The applicant appeared before the Tribunal on 9 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At hearing, the applicant presented his Malay passport and showed the Tribunal a copy of the delegate’s decision record. No other documentary evidence was submitted, and no request was made for the Tribunal to take witness evidence.
The applicant gave oral evidence concerning his job prospects in Malaysia and the need to repay a loan. His evidence is discussed further below, as relevant.
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.
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
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 applicant gave evidence that he is a citizen of Malaysia and no other country. As noted above, he produced his Malay passport at hearing. The Tribunal accepts that the applicant is a national of Malaysia and that Malaysia is the receiving country for the purpose of assessing his claims.
The applicant gave evidence at hearing that a friend introduced him to an agent who agreed to make a protection visa application on his behalf. This agent never met with the applicant, rather communicated with him via text messages. The applicant said he had no idea what reasons or claims were included in the protection visa application or the accompanying written statement.
After discussing his claims with him the Tribunal explained that the content of the protection visa application was quite different from his oral evidence. He confirmed he did not want the Tribunal to consider the claims for protection set out in the visa application. Accordingly, the Tribunal has not further considered those claims. The Tribunal has not drawn any adverse inferences from the fact that the claims submitted in the protection visa application differed from those advanced at hearing, given the explanation provided. The Tribunal appreciated the very honest and forthright oral evidence the applicant gave at hearing, and accepts that evidence as credible.
At hearing, the applicant gave evidence that he and another sibling provide financial support for his elderly parents. He also gave evidence that he also had some unpaid loans in Malaysia. He told the Tribunal that he didn’t really fear returning to Malaysia, but that he’d like to stay here for another year or two to earn enough money to repay his debts and provide financial support for his parents.
The applicant gave evidence that he could get a job in Malaysia, but that jobs in Malaysia don’t pay well. He noted that he is in his [Decade] and since being in Australia he’s divorced from his wife and his son has grown up, so he’s not really sure what he’d do on return. He said that there are job opportunities but he could only earn enough to support himself, and so he worries about supporting his parents.
The applicant gave evidence that starting in about 2015 he took out a series of loans to keep his [business] going. He said that when companies he did work for failed to pay him, he would have to borrow money to pay the people that did work for him. He eventually borrowed a total of RMB 500 000 – some of which he managed to repay, but some is still owing. He decided to come to Australia because his savings and funds became less and less. He gave evidence that he wasn’t chased by the creditors previously.
The applicant gave evidence that if he returns to Malaysia, the creditors will seek repayment and come to his door, which will stress him out. He gave evidence that the creditors would not harm him physically or beat him up.
The Tribunal accepts that the applicant can earn more money working in Australia than in Malaysia. However, the Tribunal does not accept that any economic hardship he will experience in Malaysia would amount to serious harm. It was his own evidence that he could get a job that would allow him to support himself. The Tribunal accepts it may be difficult for the applicant to continue to financially support his parents, but is not satisfied this would constitute serious harm. Moreover the applicant has not claimed that he would experience any discriminatory treatment in relation to seeking work or the jobs he could obtain, but rather gave evidence that the economy in Malaysia is not good.
The Tribunal accepts that the applicant owes money to creditors in Malaysia and that they may seek repayment of money owed when he returns, and that this could cause stress for the applicant. However, the Tribunal is not satisfied that this would amount to serious harm, nor that the people seeking repayment of loans would be doing so for one of the reasons set out in s 5J(1)(a) of the Act.
The Tribunal is not satisfied that there is a real chance the applicant would be subjected to serious harm on return to Malaysia. The Tribunal is not satisfied that there is a real chance the applicant would be persecuted for one of the reasons specified in s 5J(1)(a) of the Act on return to Malaysia.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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).
As outlined above, the Tribunal accepts that the applicant can earn more money working in Australia than in Malaysia, that it may be difficult for him to continue to financial support his parents, and that creditors to whom he owes money may seek repayment on return to Malaysia.
However, the Tribunal is not satisfied that any of these things would amount to significant harm. These difficulties do not involve the death penalty or arbitrary deprivation of life. The Tribunal is not satisfied that any of the intentional elements would be present for these difficulties to constitute torture or cruel or inhuman treatment or punishment. While the Tribunal accepts that having less money than he is presently earning will cause some difficulties for the applicant in terms of providing support for his parents, and that creditors seeking repayments from him would be stressful, the Tribunal is not satisfied that either of these difficulties would involve an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy 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
(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.
…