1924622 (Refugee) - [2024] ARTA 56

DECISION AND
REASONS FOR DECISION
1924622 (Refugee) [2024] ARTA 56 (19 December 2024)
.
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1924622
Tribunal:General Member T Guthrie
Date:19 December 2024

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

Statement made on 19 December 2024 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – written claim of fear of harm from loan shark abandoned at hearing – no past harm or fear of future harm – working in Australia to support family – student and housing loans being repaid – married Malaysian national in Australia –decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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 (as the Minister was then known) on 11 June 2019 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 11 June 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act or the complementary protection criterion in s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 15 August 2024 via videoconference 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
Identity documentation
The applicant provided the Department with a copy of her Malaysia Identity card (MyKad) and a copy of the bio-data page of her Malaysian passport.
Electronic Travel Authority
The applicant entered Australia on an authority to enter Australia as a tourist. The ETA was approved on 6 March 2019.
Application for a protection visa
According to the applicant’s application for a protection visa, she last arrived in Australia [in] March 2019.
She did not receive any assistance to complete her application. She was born in Kuala Terengganu, Terengganu, Malaysia and is single. Her only address in Malaysia was in [Town] Terengganu Malaysia. The applicant is of Muslim faith. The applicant was first employed from 1 January 2016 to [March] 2019 after she finished middle school in [Year]. She was self-employed as [an occupation], [doing job tasks]. Between [March] 2019 and 11 June 2019, she was unemployed and travelling relying on financial support from her family and her savings.
The applicant claims that she borrowed money from a loan shark and could not repay it which caused the interest to rise. She claims that her life was threatened and that she was threatened with injury. She claims that the same thing will happen to her if she returns to Malaysia. The applicant claims she still owes money and that they will kill her as she does not have the money to repay them. The applicant claims that the authorities cannot protect her because there are people working for the loan sharks. She claims that her family members are afraid to protect her as they will also be ‘stuck with her problems’.[1]
[1] Application for protection visa, answers on pp. 13 and 14 of 19.
Evidence before the Tribunal
The applicant applied for review of the delegate’s decision on 3 September 2019. The applicant provided the Tribunal with a copy of the delegate’s decision. The applicant did not provide any evidence to the Tribunal in support of her claims for protection either prior to or after the hearing on 15 August 2024. The salient parts of the applicant’s oral evidence at the hearing are discussed under the heading ‘Reasons and Findings’.
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’s 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]).
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Based on the identification documentation provided to the Department, I am satisfied that the applicant is a National of Malaysia. Malaysia is the receiving the country for the purposes of assessing the applicant’s claims for protection.
The applicant is currently [Age] years of age. Based on the applicant’s application for a protection visa and the delegate’s protection visa decision record, I am satisfied that the applicant arrived in Australia [in] March 2019 on an Electronic Travel Authority. She applied for a protection visa on 11 June 2019.
At the hearing the applicant gave evidence that she was encouraged by a friend to make the claims that she feared harm from a loan shark in Malaysia. Her oral evidence was that she had never borrowed money from a loan shark in Malaysia. She abandoned her claim that she was fearful of a loan shark if she returned to Malaysia. Her evidence was that she did not fear returning to Malaysia for any reason. She was motivated to travel to Australia to have the experience of travelling and to help her family. She hoped to remain in Australia for as long as possible so that she could earn a higher income to pay for the construction of a new house for her family in Malaysia. Where her oral evidence is inconsistent with the contents of her application for a protection visa, I have preferred her oral evidence. I am satisfied that the applicant’s oral evidence at the hearing was truthful and I have made relevant findings of fact based on that evidence.
The applicant was born in Terengganu Malaysia where her parents currently reside. She studied to become [an occupation]. She worked briefly as [an occupation] before she travelled to Australia. She ceased work due to the low pay. She travelled to Australia for the travel experience and to earn a better income to support her family in Malaysia and in particular, to pay for the land and construction of a new home also in Terengganu.
Her parents are currently living in the house she shared with them before she travelled to Australia. Some of her [siblings] reside with her parents. When the new house is completed her parents and other family members will move there. She and her elder brother financially support the other family members including her other siblings and her parents. Her father can no longer work and other family members are unemployed or unable to work for a variety of reasons. Her mother contributes some income to the household by selling cakes and a sister receives a payment due to a disability. A brother-in-law who has suffered ill-health may receive some money, but she was not sure how much. Her elder brother pays the family’s living expenses. She is responsible for the cost of the new house. She has already paid for the land and the house is 50% constructed. She requires another MYR70,000 to complete the construction of the house.
She married a national of Malaysia in Australia on [Date] in Australia. They do not have any children. Her partner holds a Visa E so that he can stay in Australia with her until they return to Malaysia together. When she returns to Malaysia, she will reside with her family members in the new house. I find that if the applicant returns to Malaysia now or in the reasonably foreseeable future she will reside with her family in Terengganu Malaysia.
Her evidence was that if she returns to Malaysia, she will find employment. She may start a business. She is in good health. If she returns to Malaysia, she estimates it will take her about four or five years to pay the balance of the construction of the house. It will take less time if she remains in Australia. I accept that the applicant is in good health. I accept that the applicant will find employment in Malaysia if she returns now or in the reasonably foreseeable future.
Based on the applicant’s evidence I accept that she has a student loan of MYR30,000 which she is repaying by monthly repayments. She anticipates the loan being repaid in a year. Based on the applicant’s evidence, I find that she is making the necessary repayments on that loan. I also find that if she returns to Malaysia, she will be able to continue to make those repayments.
Consistently with the applicant’s oral evidence I find that the applicant has never borrowed money from a loan shark in Malaysia. I find that the applicant does not fear harm from a loan shark if she returns to Malaysia.
Contrary to the contents of her application for a protection visa, her oral evidence was that did not experience any harm in Malaysia before she travelled to Australia. Her life was not threatened. She did not receive any threats of harm of any kind in Malaysia. Consistently with the applicant’s oral evidence, I find that the applicant did not experience any harm in Malaysia. I find that the applicant did not receive any threats of harm in Malaysia.
Consistently with the applicant’s evidence I find the applicant does not fear any harm if she returns to Malaysia now or in the reasonably foreseeable future. While it will take her longer to repay her student loan and pay for the new house in Malaysia if she returns to Malaysia now or in the reasonably foreseeable future, the applicant does not fear returning to Malaysia for that reason or for any other reason. The applicant does not claim she will experience any financial hardship if she returns to Malaysia now or in the reasonably foreseeable future and I find accordingly. I find that the applicant will not experience any harm if she returns to Terengganu Malaysia now or in the reasonably foreseeable future. I am not satisfied the applicant will suffer any harm if removed from Australia to Malaysia.
Does the applicant satisfy the refugee criterion for protection?
Based on the findings I have made and the reasons given above, I find the applicant does not have a genuine fear of harm if she returns to Malaysia. Section 5J(1)(a) of the Act is not satisfied. I have found that the applicant will not suffer any harm for any reason if she returns to Malaysia now or in the reasonably foreseeable future. I am not satisfied that there is a real chance that if the applicant returned to Malaysia now or in the reasonably foreseeable future, she will suffer any harm.
The applicant does not have a well-founded fear of persecution under s 5J(1) of the Act. The applicant is not a refugee under s 5H(1) of the Act. The applicant does not satisfy 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 in relation to the real chance of harm and the reasons given above, 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 she will suffer significant harm. I am not satisfied that there is a real risk that the applicant will experience any harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
I am not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
CONCLUSION
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). 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 under review.
Date of hearing: 15 August 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(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.
…