1925648 (Refugee)
[2024] ARTA 681
•27 November 2024
1925648 (REFUGEE) [2024] ARTA 681 (27 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1925648
Tribunal:General Member Matthew Currie
Date:27 November 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
General Member M. Currie
Statement made on 27 November 2024 at 3:22 PM CATCHWORDS
R REFUGEE – protection visa – Malaysia – particular social group – threats from business rivals – criminal gang – residence on other countries – fear of killing – internal relocation – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
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 on 27 August 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 31 July 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee criteria or the complementary protection provisions, as he would be able to obtain protection from the authorities in Malaysia.
On 12 September 2019, the applicant lodged an application with the Administrative Appeal Tribunal (AAT) for review of that decision. On 14 October 2024, 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. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 21 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
BACKGROUND
The applicant claims to be a Malaysian citizen who was born and lived in Ipoh, in Perak State, Malaysia. He arrived in Australia in May 2018. On 31 July 2018, the applicant lodged a protection visa application with the Department. As part of his application, the applicant provided a copy of the biodata page of his Malaysian Passport .
Evidence before the Department
The Department considered the applicants protection visa application and his passport. In his application the applicant outlined the following claims for protection:
·He is a citizen of Malaysia who was born and lived in Ipoh. He is of Chinese ethnicity. Around 2016, he opened a [product 1] business in Ipoh. His business was successful.
·His business success displeased business rivals in the [product 1] industry. These business rivals were associated with local gangsters. They threatened and assaulted him and told him to close his business. An unknown person began to stalk him, and he feared that he would be killed. In order to escape from intimidation and avoid the threat to his life, he fled to Australia in May 2018.
·If he returns to Malaysia, he will face the same risks of harm as he did before. His business rivals, who are closely associated with gangsters, will harm him. His life would be at risk, and he would be unable to earn a livelihood.
·The authorities in Malaysia would be unable to protect him from his business rivals and from gangsters.
In the s 65 decision, the delegate accepted that the applicant was a citizen of Malaysia and found that Malaysia was his receiving country. The delegate considered the claims for protection advanced in the applicant’s protection visa application but found that his claims for protection were not for reasons of race, religion, nationality, political opinion or membership of a particular social group, and found that the applicant did not meet the refugee criteria. The delegate then considered whether the applicant would face significant harm in Malaysia, but citing a range of relevant country information found that the applicant could obtain effective protection in Malaysia. In the circumstances, the delegate did not accept the applicant would face a real risk of significant harm should he be returned to Malaysia.
Evidence before the Tribunal
The Tribunal has considered the applicant’s protection visa application, his passport, departmental movement records in relation to his travel to Australia, and the evidence he provided at his Tribunal hearing.
The applicant was invited to attend a hearing before the Tribunal on 21 November 2024. That hearing was conducted with an interpreter in the Cantonese language. During the hearing, the applicant restated his principal claim for protection and provided a range of additional biographical information about his life prior to coming to Australia. The applicant asserted that:
·He was born in [specified year] in Ipoh, in the Perak State of Malaysia. He grew up in Ipoh with his parents and his [number] siblings.
·When he was around [age] years of age, he and a group of friends moved to [Country 1]. He lived and worked in [Country 1] for around four to five years before returning to Malaysia. After returning to Malaysia, he returned and resided in the family home in Ipoh.
·Around 1998, when he was [age] years of age, he moved to [Country 2]. After he had been in [Country 2] for around three years, he married. His wife was a migrant from [Country 3]. He continued to live in [Country 2] until around 2015. During the period he lived in [Country 2], he worked in the [product 1] industry.
·Around 2015, he decided to return to Malaysia. While in [Country 2] he had saved money, and he wanted to begin his own [product 1] business. The applicant returned to Malaysia and moved back into the family home in Ipoh. He and his wife had been arguing and his wife remained in [Country 2]. Though they are still married, she remains in [Country 2] and has secured permanent residency there. The applicant has no residency rights in [Country 2].
·The applicant opened his own [product 1] shop in Ipoh in 2016. He rented premises close to the family home and commenced operations. His setup costs were around 40,000 – 50,000 Malaysian Ringgit. His business was successful. After around three months he hired a staff member to assist him.
·His business success led to problems. A rival [product 1] business was owned by two brothers. In addition to their [product 1] businesses, the brothers were also members of the Ipoh underworld. They resented the applicant’s business success. They would attend his business premises and prevent customers from entering his shop and engaging him. They threatened him. They bribed the Malaysian police who harassed him. Because of the involvement of the police, the applicant did not report the problems he faced to anybody in Malaysia.
·Fearing for his life, the applicant wound up his business, obtained a Malaysian Passport and travelled to Australia. He fears to return to Malaysia as he would still be of interest to the Ipoh underworld, the police, and to his business rivals. He says if he returned to Malaysia, he would be forced to resume his work as the owner of a [product 1] business and would not be able to obtain other employment. Also, he says that he has fallen in love with Australia and does not wish to leave.
During the hearing the Tribunal asked the applicant whether he wanted time to provide any further evidence in support of his claims for protection. The applicant indicated he did not need further time, and that he did not intend to provide further evidence or information.
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.
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 issue in this case is whether the applicant meets the refugee criteria, or the Complementary Protection provisions of the Migration Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
As part of his protection visa application, the applicant provided a copy of the Biodata page from his Malaysian Passport in order to establish his identity. He brought the original copy of that Passport and his NSW Drivers Licence to the Tribunal Hearing. The Tribunal has reviewed the applicant’s Drivers Licence and his Malaysian Passport, and while that Passport has now expired, it was current at the time he arrived in Australia and provided it to the Department. The applicant has established his identity to the Tribunal’s satisfaction. The Tribunal accepts that he was born in Perak State, Malaysia, in [year], and that he is a Malaysian citizen of Chinese ethnicity as he claims.
The applicant says he lived in [Country 2] for many years. He says he has no rights to live or reside in [Country 2]. The Tribunal accepts the applicant has no right to live or reside in [Country 2]. For the purposes of this decision, the Tribunal finds that Malaysia is his receiving country.
The applicant says that during the periods of his life when he lived in Malaysia, he always lived in his family home in Ipoh. He says that though his parents are both deceased, he still owns a share of the family home in Ipoh, and that two of his [siblings] still reside in the house. During his hearing, he indicated that he still had possessions in the house. In the circumstances, the Tribunal concludes that if returned to Malaysia, he would return and reside in Ipoh, as he did in the past.
Analysis: [Product 1] business, threats & intimidation in Malaysia
The applicant has provided two versions of his reasons for leaving Malaysia in 2018. The first version of his account was advanced in his 2018 protection visa application, and the second, during his 2024 Tribunal hearing. In each version, the applicant relied upon the same principal claim for protection; that he fled Malaysia in 2018 due to pressure from business rivals who were jealous of his successful [product 1] business.
According to the applicant’s protection visa application and his verbal evidence, he commenced operating his [product 1] business sometime in 2016. The applicant’s business was successful and causes jealously from rival business owners, who were engaged in similar business activities. Both versions of the applicant’s claims indicate that his business rivals sought to intervene in his business. However, while both accounts rely on the same overarching narrative, the account provided by the applicant in his 2018 protection visa application was different in several notable ways from the account provided in his 2024 Tribunal hearing. In summary:
·In his 2018 protection visa application, the applicant did not provide any details about his business rivals, such as their names, the names of their businesses and their engagement with him. In the application, the applicant stated that that his rivals had sought assistance from gangsters to assault the applicant and to threaten, assault and intimidate him. The application indicated the applicant had been followed by an unknown man who he suspected would kill him.
·At his 2024 Tribunal hearing, the applicant was questioned about the events and issues that led to his departure. He reported that his rivals where two brothers who were partners in their own [product 1] business and who saw the applicant as a rival. He asserted that rather than seeking assistance from gangsters, the two brothers were themselves members of the criminal underworld. Significantly, he stated he had never been assaulted or physically harmed or otherwise hurt by his rivals. He said he had not been followed by an unknown person. Instead, the two brothers personally prevented him from working by physically attending his rented work premises and threatening him. They would also prevent customers from entering the shop and engaging him for work. The brothers bribed the Malaysian Police to take an interest in him. Thereafter, the police would visit his work premises and question him, preventing him from working.
Though the two accounts provided by the applicant share a similar overarching narrative, there are clear differences between the claims advanced in the 2018 application, and those mentioned by the applicant in his 2024 Tribunal hearing. Though, on their own, each of these differences is relatively minor, when considered as a whole, they are concerning as there are important differences between the two accounts. At the hearing the Tribunal questioned the applicant closely about these claims for protection.
When asked to explain the differences, the applicant stated he did not know the content of his protection visa application and that he had relayed his true claims to a lawyer who had filled out the application on his behalf. However, earlier in the Tribunal hearing the applicant had asserted he knew the content of his protection visa application, had been present when the form was completed, and that its claims were true and that the contents of the application had been read back to him. In this context, the Tribunal notes that the protection visa application contains the applicant’s signature. In the Tribunal’s view, the differences in the applicant’s two accounts call into question the reliability of the applicant’s claims and weigh against accepting his claims for protection.
Though the applicant’s central claims for protection all derive from his claim to operate a [product 1] business, he has not provided any independent supporting evidence for his claims about operating such a business in Malaysia. At the Tribunal hearing, the applicant was asked whether he could provide any supporting evidence for his claims about his business, such as photographs of his business, or rental documents, or brochures or any other business records. When asked, the applicant did provide a name for the [product 1] business, but beyond asserting that it was close by the family home in Ipoh, was unable identify the address of the business. He was unable to identify any additional supporting evidence in relation to the business. The Tribunal considers that the applicant’s inability to provide any supporting evidence for his business also weighs against accepting his principal claims.
The Tribunal has already noted important differences between the two narrative accounts provided by the applicant. During his Tribunal hearing, there were differences with some of the biographical information provided by the applicant which were also concerning. Examples of the concerning information he provided include:
·Initially he said he had lived in his family home in Ipoh for his whole life before he came to Australia. However, he later disclosed he had lived in [Country 1] for four to five years during his [age range], and later, in his [age range], had resided in [Country 2].
·He initially indicated that he lived in [Country 2] for six to seven years. When asked to clarify, stated he moved there when he was [age] (i.e. around 1998) and returned to Malaysia the year before he started his [product 1] business (i.e. around 2015) indicating he had spent around 17 years in that country.
·When asked if he was married, he initially indicated that he did not know if he was married. Later he said that he had been married, that his marriage had been registered in [Country 2] and that he had a copy of his marriage certificate at his home in Ipoh.
·When asked about his immigration status in [Country 2], a country where he resided for 17 years, he said he did not know his status. He said he was unsure if he had applied for residency when his wife had, he said he was unsure if he was a [Country 2] citizen or whether he had permanent residency.
·When asked why he had not renewed his Malaysian Passport (which expired in 2023) he said he was unsure that he could renew it in Australia. Later he said that he had always had a Passport and that he had had to renew his Passport every five years. When it was pointed out that if he renewed his Passport every five years then he must have renewed it while he was in [Country 2], he said he had not, and had let his Passport expire and had returned to Malaysia in 2015 on a temporary Passport issued by the Malaysian consulate.
The Tribunal is concerned by some of the applicant’s verbal evidence at his hearing. It seems doubtful that a person could forget about the more than two decades he spent living outside his country of birth or could confuse six or seven years of residence in [Country 2], with seventeen years of residence in that country. It seems doubtful that the applicant would not know if he had been married when he had a marriage certificate in his possession or that he would not know whether he had applied for residency or citizenship or whether such a status had been granted. In the Tribunal’s view, the information the applicant provided about these issues cast doubt on the reliability of his account of his life. The tribunal is not satisfied that the applicant has been entirely forthcoming about his life prior to travelling to Australia.
Country information before the Tribunal indicates that law enforcement agencies operate at both the State and Federal level in Malaysia. The Royal Malaysia Police is responsible for law enforcement throughout Malaysia[1]. According to DFAT, the Malaysian police is reported to be generally professional and effective. There are around 115,000 police officers in Malaysia located at over 800 separate police stations[2]. Nevertheless, the quality of the police response can vary, and may depend on factors such as level of training, capacity and corruption. Members of the police in Malaysia are the lowest paid members of the Malaysian civil service and in a survey conducted by Transparency International in 2020, public perceptions of corruption within the police were high, compared to other public institutions in Malaysia, with 30 percent of those surveyed perceiving police to be corrupt[3]. However, these findings are a substantial improvement on earlier survey results which found perceived corruption to be much higher. Malaysia has an Independent Police Conduct Commission which was inaugurated in 2022 to hear complaints about police misconduct[4].
[1] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, 20240624113833
[2] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, 20240624113833
[3] Global Corruption Barometer - Asia’, Transparency International, 24 November 2020, p.10 & 44, 20201202170007
[4] 'Malaysia Human Rights Report 2023', Suaram (Suara Rakyat Malaysia), 27 March 2024, 20240327165904
There are organised criminal groups and gangs operating in Malaysia. In 2023, the Malaysian Government publicly identified 72 organised criminal groups, the majority of which are Chinese triads[5]. There are numerous reports about the activities of organised criminal group in Malaysia and about the police response to these activities. Malaysian police force has a long history of working against organised criminal groups. The Malaysian Prevention of Crime Act 1959 was introduced to target organised crime, especially those relating to triads, secret societies and repeat offenders. The Act was amended in 2014 and 2017 respectively with additional provisions, making the law even more strict[6].
[5] 'Transnational Crime in Southeast Asia: A Growing Threat to Global Peace and Security', United States Institute of Peace, May 2024 , 20240514112958
[6] 'Malaysia Human Rights Report 2023', Suaram (Suara Rakyat Malaysia), 27 March 2024, 20240327165904
The Tribunal has considered the country information cited above. The Tribunal accepts that there is a criminal underworld and organised criminal gangs that operate in Malaysia. The Tribunal also accepts that criminal enterprises can be intwined with business interests. The applicant alleges police corruption and country information does indicate that police in Malaysia can be perceived as corrupt by the populace.
The Tribunal considers that the applicant’s explanations for the problems he faced that have been provided in his protection visa application and his Tribunal hearing are very brief and contains only limited detail. For the reasons outlined above, the Tribunal has many concerns about the reliability of the information the applicant has provided about his life before he arrived in Australia. Nevertheless, despite the Tribunals concerns about the applicant’s reliability, and his inability to provide any independent supporting evidence for his claims, a person may have many reasons for not being entirely transparent about their life. In light of the country information and the general consistency of the applicant’s overarching narrative, and the lack of any contrary evidence, the Tribunal accepts the applicant was the owner of a [product 1] business in Malaysia between 2016 and his departure for Australia in 2018. The Tibunal is also willing to accept that the applicant faced business pressure and threats from rival [product 1] businesses as he has claimed.
However, on the applicant’s own explanation, all the problems he faced in Malaysia derived from his operation of the [product 1] business between 2016 and his departure for Australia in 2018. He says it was only his business activities that led to problems, and that his rivals told him to close the business, or he would face harm. In the circumstances, it is significant that the applicant did close his business in 2018. On his own evidence, the applicant complied with the demands of his business rivals.
The applicant has now resided in Australia for over six years. He has had no business dealings Malaysia during the period, and the [product 1] business he owned has not been operational since departed Malaysia. Given that his business is closed, and that he has not had any dealings in the Malaysian [product 1] industry for six years, it is not apparent that his business rivals in that country, or underworld interests linked to his business rivals, or anybody else would have any further interest in him now.
When the Tribunal put it to the applicant that he had complied with his rival’s demands and closed his business, he agreed that he had complied. He has not had any further dealings with his business rivals, or anybody else in the [product 1] business in Malaysia in the more than six years he has been in Australia. In circumstances where the applicant complied, and where he has had no further dealings with his business rivals, the Tribunal is not satisfied that the applicant’s former business rivals in Malaysia, or any underworld elements linked to them, or anybody would have any interest in this applicant now.
Noting that he had complied with the demands of his business rivals, the applicant was questioned about why he feared to return to Malaysia now. In response, the applicant asserted that if he returned to Malaysia now, he would be forced to reopen his [product 1] business, since he had worked in [that] industry for many years, and that this would lead to the same problems re-emerging.
The Tribunal put it to the applicant that statistics published by the Malaysian Government indicated that the construction sector had experienced growth in recent years and was predicted to grow further in 2025[7]; and that statistics published by the Perak State Government indicated that there were tens of thousands of workers employed in the construction industry in Perak[8]. These factors suggest that there were many thousands of jobs available in the construction sector.
[7] Malaysia, Ministry of Finance – Economic Outlook, 18 October 2024, accessed on 20 November 2024https://belanjawan.mof.gov.my/pdf/belanjawan2025/economy/Key-Data-Forecast.pdf
[8] Data Asas NEGERI PERAK 2017-2019, p 40, accessed on 20 November 2024https://
The Tribunal also put to the applicant that he has worked in other jobs in the past, and that if he returned to Malaysia he would not be compelled to work in the [product 1] industry; that even if he did seek employment in the [product 1] industry, he would not be compelled to reopen his own business and that he could seek employment with another employer; that there were many other [product 1] businesses operating in Ipoh for whom he could work; and that in any case, if he returned to Malaysia, he would not be compelled to return and live and work in Ipoh where he faced problems in the past.
In response the applicant agreed that there were many [product 1] installers operating in Malaysia and in Perak and that there were many opportunities for employment. However, he continued to argue that he would be forced to open his own [product 1] business because of his age, and because he did not know how to work for somebody else in Malaysia. He said if he lived in another part of Malaysia, he would have to pay rent. He also asserted that he had fallen in love with Australian and wished to stay here.
The Tribunal referred the applicant to his own earlier evidence, when he had indicated that in Malaysia, he had personally employed a worker in his own [product 1] business and so it was possible to obtain employment in the [product 1] industry working for somebody else. Furthermore, having previously employed a staff member in that role, the applicant did know about working for other persons. The Tribunal accepts that if he lived in another part of Malaysia, he may have to pay rent, but it is notable that if he was in another part of Malaysia, he would not face any interest from his business rivals, who were based in Ipoh. Country information does not indicate he would be unable to rent accommodation in Malaysia. The applicant did not claim he would not be able to secure rental accommodation. Country information before the Tribunal does not indicate that he would be prevented from working due to his age. The applicant himself was able to work in Malaysia as recently as 2018. The Tribunal informed the applicant that his professed love for Australia had no bearing on issues of his case.
The Tribunal has carefully considered the applicant’s claims about the problems he may face upon return to Malaysia. However, since the applicant conceded that there were many other [product 1] businesses in Malaysia, and many thousands of other jobs in the construction sector, the Tribunal is not satisfied that the applicant would be compelled to work in the [product 1] industry, or that he would be forced to open his own business, or that would be unable to work for another party in Malaysia. The tribunal is not satisfied that anybody in Malaysia, including the applicant’s former business rivals, the criminal underworld or the Malaysian Police, or anybody else would care about his past business activities in Malaysia, or would have any interest in him now for those activities now.
The Tribunal accepts that if returned to Malaysia, the applicant’s many years of experience may lead him to seek work in the [product 1] industry. However, given that the applicant accepts that there are many other businesses which work in [that] industry, and has not pointed to any evidence that indicates the [product 1] industry is particularly affected by these types of problems. The tribunal is not satisfied that the applicant has a profile which would make him of particular interest to criminal groups or anyone else in Malaysia. The Tribunal is not satisfied that merely working in the [product 1] industry would lead to him facing any problems now.
Does the applicant satisfy the refugee criterion for protection?
For the reasons given above, the Tribunal has found that is not satisfied that this applicant’s past business activities, including his past ownership of at [product 1] business, would be of any interest to any party in Malaysia now, including his former business rivals, underworld figures or corrupt Malaysian Police. The tribunal is also not satisfied that the applicant would face any interest from anybody in Malaysia, if he sought to resume working in the [product 1] industry now, or in the future.
In the circumstances, the Tribunal is not satisfied that the applicant would face a real chance of any harm in Malaysia for any of the reasons set out in the legislation were he to return to that country now, or in the reasonably foreseeable future. The Tribunal is not satisfied the applicant has a well-founded fear of persecution in Malaysia for any of the reasons set out in the legislation.
In the circumstances, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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).
The Tribunal has found that this applicant would not face a real chance of harm arising from any of his claims for protection and that he was not of any interest to anybody in Malaysia. As the ‘real chance’ and ‘real risk’ test have been found to meet the same standard[9], it follows that the Tribunal is not satisfied that this applicant would face a real risk of any of the kinds of significant harm set out in the legislation were he to be removed from Australia to Malaysia. The tribunal is also not satisfied that the applicant would face a real risk of significant harm for any other reason.
[9] MIAC v SZQRB (2013) 210 FCR 505
In the circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk of significant harm for any of the reasons outlined in the applicant’s protection visa application.
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.
Date of hearing: 21 November 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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