1931174 (Refugee)

1931174 (Refugee) [2024] AATA 3119 (6 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1931174
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Rachelle Johnston
DATE:6 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(c)(i) of the Migration Act.

Statement made on 06 May 2024 at 4:03pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – abandoned the entirety of the claims – child’s future, educational opportunities – race – Tamil – main fear is in relation to education opportunities and the future for her family – not satisfied the applicant is a person in respect of whom Australia has protection obligations – husband’s appeal before the Tribunal was set-aside – membership of the same family unit – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 October 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 citizen of Malaysia, applied for the visa on 19 November 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant lodged a protection visa application on 19 November 2018. In that application she provided the following:
·     She was born in [year] in [a district], Perak, Malaysia.
·     She speaks, reads, and writes Tamil, Malay, and English.
·     Her religion is Hindu and she is Indian Malay.
·     She is not in contact with any relatives in Malaysia.
·     She has a sibling in Australia.
The applicant makes the following claims in her protection visa application form:
·     She was forced to get married to a man she knows nothing about because her father owes some money to him. She said no but he threatened her to do so or something bad would happen to her.
·     Her father is known to be abusive. Her mother asked her to leave the country so that her father won’t harm her.
·     She was emotionally abused in Malaysia. Her father would try to beat her, but her mother would protect her and her siblings.
·     Her father liked to gamble and drink. He would be in a bad mood if he lost and returned home drunk. When this happened sometimes he would get into an argument with her mother and beat her. When she tried to stop him, she would be his next target.
·     Her mother begged her not to report her father. She does not know how she could report her own father to the authorities.
·     She was too afraid to relocate. The man her father owes money to is a gangster and would definitely be able to find her if she stays within Malaysia.
·     She is afraid her father will try to marry her off with the guy he has debts with. If she goes against her father, she is afraid the man he owes money to would harm him.
Interview with the delegate
The applicant was not interviewed by the Department.
The delegate’s decision
On 22 October 2019, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that she will suffer significant harm as defined in s36(2)(aa) of the Act.
Claims and evidence before the Tribunal
Review application
On 2 November 2019, the applicant applied for a review of the delegate’s decision.
The hearing
The applicant was invited to appear before the Tribunal on 15 March 2024 to give evidence and present arguments. The applicant attended the Tribunal on 15 March 2024 with her [age]-year-old daughter. An interpreter in the Tamil and English languages also attended by video conference. Given communication difficulties with the presence of her daughter at the hearing, the Tribunal adjourned the hearing for an alternative date that the applicant’s husband could care for their daughter.
The applicant appeared before the Tribunal at a resumed hearing on 22 March 2024. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The Tribunal confirmed with the applicant they were able to understand the interpreter. The applicant was able to answer questions without hesitation and her answers demonstrated an understanding of the questions being put to her.
The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present their case, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
Post-hearing submissions and evidence
On 22 March 2024, the applicant provided the Tribunal with a copy of the following documents:
·     A copy of her Marriage Certificate confirming her marriage to her husband on [date January] 2021.
·     [A qualification] dated 28 May 2021 from [an institute].
·     A Birth Certificate for her daughter born on [date].
·     Confirmation from the Department of her daughter’s Bridging Visa A.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Nationality
The applicant claims to be a citizen of Malaysia and provided a copy of the bio-data page of her Malaysian passport to the Department. The delegate was satisfied that the applicant is using her own identity and that she is a citizen of Malaysia. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of Malaysia and Malaysia is her receiving country for the purposes of assessing her claims for protection.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The Tribunal found the applicant at hearing to be a credible witness who provided straight-forward evidence in support of her claims and a detailed history of her life in Malaysia and the circumstances leading to her protection visa application.
The applicant explained an agent initially arranged for her to travel to Australia with them in February 2018 for three months to experience the Australian environment and consider whether she wished to study in Australia. Once she returned to Malaysia in early May 2018, she was told a student visa would cost a lot of money. She paid instalments of what she thought was a visa fee to her agent. When she returned to Australia in August 2018 her agent did not travel with her and she stayed with a person in Melbourne who was connected to her agent. Initially she was taken to a farm to work, before moving to Sydney to be with her husband, who was a friend of hers at that time. The Melbourne contact sent her a visa application to submit, telling her she had to apply for the visa within three months or she would have to return to Malaysia. She was told she could study with the visa, so she thought it was best to apply and put her signature on the form and send it to the Department. She explained she wanted to get a job and look after her family. The applicant stated she never intended to apply for a protection visa and wanted to obtain a student visa.
When asked if she agreed with the section in her protection visa application about what happened to her in Malaysia, she stated she wanted to get a student visa to study and travel back to Malaysia to see her parents and grandmother and she was told by her agent in time her visa could be changed. The applicant explained the agent wrote a different story in the protection visa application to what she had told her. The Tribunal asked the applicant if her claims relating to the gangster and her forced marriage were true and she stated that nothing like that happened. When asked if her father was drunk, gambled, and beat her mother she stated no and that those details were not correct. The applicant abandoned the entirety of the claims as set out in her protection visa application at hearing.
The Tribunal discussed with the applicant at hearing her protection claims, what she claims occurred in Malaysia, why she fears returning to Malaysia, and her work, family, education, travel and residential history. She explained her mother, father, and grandmother still live in Malaysia and she has weekly contact with them. She completed secondary school in Malaysia and then started working in [Country 1] as a [occupation]. For two to three years she worked in that role, travelling to [Country 1] from Johor Bahru in Malaysia where she stayed with a friend. In Malaysia she also worked in [retail]. Since arriving in Australia she has married, on [date January] 2021, and her daughter was born on [date]. At hearing the applicant explained she was pregnant with her second child.
When asked why she fears returning to Malaysia and what will happen if she returns there, the applicant explained at first when she came to Australia, she wanted to be able to go back to Malaysia and see her parents, and even now that is the case. However, she does not want to go and stay there permanently because she has a good future in Australia compared to Malaysia. The applicant raised concerns relating to hers and her child’s future, educational opportunities, ethnic discrimination, and general violence in Malaysia.
Claims relating to hers and her child’s future, educational opportunities, and ethnic discrimination
The applicant stated she would not be harmed if she returned to Malaysia, but she won’t get a good education in Malaysia and won’t have a good life or future. She stated once her children go to school, she wants to continue her studies in Australia. She stated she wants to get a good education for her children and in Malaysia you cannot get a good education as they look into ethnicity and there is discrimination.
The applicant explained whilst she has been in Australia, she has completed some studies and did some work experience in [a field] before she became pregnant and had her daughter. She explained she does not want to go back to Malaysia and spoil her child’s future, the future of the child she is now carrying, or impact hers or her children’s education.
The applicant stated there is no support from the government in Malaysia and there are different things happening, whereas Australia is very safe. When asked if there was any specific fear the applicant held as to what would happen to her in Malaysia, she stated she believed her future would be wasted and she thinks she can have a good education in Australia.
The applicant stated if she were to go back to Malaysia the life would not be as good as in Australia. Her child was born here, and she wants them to study here. The applicant explained in Malay schools the Tamil children are asked to wear the burka and Tamil children are forced to study the Quran and Muslim language. She stated she’s scared if she goes back to Malaysia her children’s future will be destroyed.
When asked if there was any other reason or basis on which she feared harm on return to Malaysia she stated her children’s future is her main fear and other than that she doesn’t have any fear.
The Tribunal raised with the applicant that her children are not applicants before the Tribunal. Given the applicant raised concerns in relation to hers and her children’s education in Malaysia and potential ethnic discrimination she may face, such as having no support from the government, the Tribunal raised relevant country information with the applicant at hearing in relation to these claims and invited her to comment. The Tribunal outlined as of July 2018, there were 7,776 primary national schools, around 700 national-type Tamil schools, and 2,426 secondary national schools in Malaysia. All national schools use Bahasa Malaysia as the language of instruction. National-type Chinese and Tamil schools use their mother tongue as the main medium of instruction and teach Bahasa Malaysia as a compulsory subject[1]. It explained country information before the Tribunal indicates that access to education for Tamil Malaysians is high[2] and that DFAT assess Indian Malaysians face low levels of official discrimination.
[1] DFAT, Country Information Report - Malaysia, 29 June 2021, 2.28, 14.
[2] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.13, 22-23.
The Tribunal explained the country information suggests some Tamils are disadvantaged by quotas when attempting to gain entry into the state tertiary system, with public universities favouring ethnic Malays[3] over other ethnic groups[4]. The Tribunal explained to the applicant the country information before it indicates there is the opportunity in Malaysia to attend a Tamil school and there is no information before it that indicates it is a requirement to wear a burka or that there is the forced adoption of the Muslim religion[5].
[3] DFAT reports that under Article 160 of the Constitution, an ethnic Malay person is an individual with characteristics that include professing the religion of Islam, habitually speaking the Malay language, conforming to Malay customs and being the child of a Malay parent. Collectively Malaysia’s ethnic groups are referred to as Bumiputera and account as of 2018 for over 60% of the population. DFAT, Country Information Report - Malaysia, 29 June 2021, 3.2, 20
[4] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.20; 3.14, 23-24.
[5] Sources considered: DFAT, Country Information Report - Malaysia, 29 June 2021; United Nations General Assembly, Human Rights Council, Working Group on the University Periodic Review, National Report submitted pursuant to Human Rights Council regulations 5/1/ and 16/21 – Malaysia, 22 January to 2 February 2024; United States Department of State, 2023 Country Reports on Human Rights Practices: Malaysia; Freedom House, Freedom in the World 2024: Malaysia.
In response the applicant stated in a Tamil school they would not require this, but it would happen in a Muslim school. She stated her child was born here and only understands English. The applicant explained because Malaysia is a Muslim country the main support is given to Muslim people and Tamil people don’t get much support for anything including in education. She stated if you go to get a job and are Muslim, you’d definitely get a job, but Tamils have less opportunities.
The Tribunal considered country information concerning Indian Malaysians and ethnic and racial discrimination in Malaysia, including in relation to employment, and raised it with the applicant at hearing. The Tribunal outlined DFAT report that Indian Malaysians constitute the third largest ethnic group in Malaysia. The Malaysian Department of Statistics estimates there were 2.02 million Indian Malaysians in Malaysia in 2020, making up over 6 per cent of the population. Indian Malaysians predominantly live in major urban centres. While more than 50 per cent of Indian Malaysians were employed in low-income jobs as of 2015, they also represented a high proportion of professionals (15.5 per cent in 2010), including 38 per cent of the entire medical workforce[6].
[6] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.13, 22-3.
The Tribunal discussed this country information with the applicant at hearing and outlined that DFAT assesses Indian Malaysians face low levels of official discrimination. It noted the country information provides there is preferential treatment for ethnic Malays in the civil service, government, and universities. It also stated that DFAT assess Indian Malaysians involved in ‘gangsterism’ face a moderate risk of violence, potentially from other gangsters and from the police, more likely due to their activities than on the basis of their ethnicity[7].
[7] DFAT, Country Information Report - Malaysia, 29 June 2021, 3.20, 23.
The applicant commented in response to the country information that there are violent fights between gangsters because of racism. She stated when you see signboards in Malaysia it is rare to see Tamil words and it’s mainly Chinese, Malay and some other language, not Tamil. She explained in Australia she has not seen discrimination and she feels better in Australia, as in Malaysia, being a Muslim country, the main support is given to them.

The Tribunal raised its concern that based on the country information before it and her oral evidence at hearing, including that some preferential treatment is given to ethnic Malays and the Tamil language is not included on signs, it may not find she would face a real chance of serious or significant harm if she were to return to Malaysia in the reasonably foreseeable future, which is required for the grant of a protection visa. The Tribunal invited the applicant to provide anything further in support of her claims.
The applicant stated even if she doesn’t have any harm in Malaysia she doesn’t want to go and live there. She stated she has a good future in Australia and wants to continue her studies in Australia where she prefers the education. The Tribunal considered the evidence before it, the country information discussed above and raised with the applicant at hearing, and the applicant’s responses to its concerns, and whilst it understands the applicant would prefer to undertake her studies in Australia, and accepts there is preferential treatment given to ethnic Malays in some aspects in Malaysia, including in the civil service, government, and universities, it did not find the applicant’s responses addressed its concerns in relation to whether she would face a real chance of serious or significant harm for any reason on return to Malaysia.
Claims relating to general violence
At hearing when asked if there was anything else the applicant wished to state in relation to the harm she fears she will face if she returns to Malaysia she stated she doesn’t have a specific fear of harm returning there, but everyday there are different things happening such as children being kidnapped. She stated she has seen on the news stories of children being kidnapped and things like a boyfriend pushing his girlfriend down the stairs. She stated since arriving in Australia she has not feared violence and at night she is able to take her family out on the road, whereas in Malaysia she is fearful of going out and you can’t go out at night.
The Tribunal asked the applicant if she experienced any persecution or past harm in Malaysia, such as intimidation or harassment. She stated she didn’t have anything like that happen to her, although because of everything that happens in Malaysia she didn’t go out anywhere and lived in her house. She stated when she was traveling to and from [Country 1], she was fearful whilst entering Malaysia and travelling within Malaysia.
At hearing the Tribunal raised with the applicant its concern that she had stated at hearing she did not intend to apply for a protection visa and wanted to apply for a student visa, she had indicated she had not experienced past harm in Malaysia, and she did not have any specific fear of harm in Malaysia. The Tribunal explained given her oral evidence it may not find she fears or faces a real chance or serious or significant harm if she were to return to Malaysia in the reasonably foreseeable future. In response the applicant stated she is living safely with her family in this big, large country and she wants to stay here as a family safely. The Tribunal appreciates the applicant wishes to remain in Australia but did not find her response addressed its concern.
The Tribunal raised country information with the applicant that provides DFAT report that Malaysia’s overall security situation is generally stable[8]. Whilst they report petty crime is common, they indicate the threat of kidnapping is high in coastal areas of eastern Sabah. DFAT report the Royal Malaysia Police is generally considered a professional and effective force which operates 837 police stations nationwide and employs approximately 115,000 officers[9]. The Tribunal explained to the applicant the country information before it may lead it to find the security situation in Malaysia is generally stable, state protection is available, and she may not face a real chance of serious or significant harm if she were to return there in the reasonably foreseeable future.
[8] DFAT, Country Information Report - Malaysia, 29 June 2021, 2.44, 17.
[9] DFAT, Country Information Report - Malaysia, 29 June 2021, 5.5-6, 58.
The applicant commented that this information is given as Malaysia wants to protect their country and have a good reputation. She stated if you watch the news about Malaysia you come to learn what is happening every day and even at schools the children are not safe and recently a child fell from upstairs and died and the parents of that child are seeking justice.
The Tribunal raised its concern with the applicant that the criteria for a protection visa, among other things, requires a real chance of serious or significant harm and explained based on the country information and her oral evidence at hearing, it may not find she faces a real chance of serious or significant harm if she were to return to Malaysia in the reasonably foreseeable future. The applicant commented that she’s not scared of any specific harm, but she has a fear that the type of harm she has explained at hearing could happen to herself or her children or her family. She stated her main fear if she were to return to Malaysia is that her future will be destroyed and in Australia, she has a good education and future. The Tribunal has considered the applicant’s response and finds it does not address its concern as to whether she would face a real chance of serious or significant harm on return to Malaysia.
Relationship status
The applicant outlined for the Tribunal a relationship history for herself and her husband. She explained she met her husband when she first came to Australia. At that time, he was just a friend, however they commenced a relationship after she moved to Sydney from Melbourne.
The applicant explained she married her husband on [date January] 2021. The applicant has provided the Tribunal with a Certificate of Marriage from that date naming the applicant and her husband.
The applicant and her husband have a daughter, born on [date]. The applicant has provided the Tribunal with a NSW Birth Certificate for her daughter which names herself and her husband as the parents.
At hearing the applicant explained she was [pregnant] with her second child. She confirmed she lives in rental accommodation in Sydney with her husband and child and that her husband provides her with financial support.
The Tribunal accepts the applicant married her husband on [date January] 2021, their daughter was born on [date], the applicant is currently pregnant, and she is in a continuing relationship with her husband.
Findings
The Tribunal has considered the applicant’s evidence at hearing and the written evidence in support of her claims, and for the reasons set out above finds as follows.
The Tribunal accepts the applicant was assisted to complete her protection visa application by an agent and the applicant has abandoned the claims as set out in her protection visa application in their entirety. The Tribunal does not accept the applicant’s father was targeted by a gangster, that she was at any time pressured into marriage to pay off the gangster, or that her father was drunk, gambled, or beat her or her mother at any time. The Tribunal does not accept the applicant left Malaysia because her father was harming her.
The Tribunal accepts the applicant was not harmed in Malaysia in any way or at any time.
The Tribunal accepts the applicant married her husband on [date January] 2021, their daughter was born on [date], she is currently pregnant, and she is in a continuing relationship with her husband.
The Tribunal accepts the applicant completed secondary school in Malaysia and worked as a [occupation] in [Country 1] for two to three years, travelling from Johor Bahru to [Country 1] for the role. The Tribunal accepts she also has retail experience in Malaysia and in Australia has completed some studies and work experience in [a field].
The Tribunal accepts the applicant would prefer to undertake further studies in Australia and she would prefer her children to be educated in Australia.
The Tribunal accepts there is preferential treatment given to ethnic Malays in Malaysia, such as in the civil service, government, and universities.
Does the applicant meet the refugee criterion?
The applicant claims if she were to return to Malaysia, she and her children would not have a good education, they would be subject to ethnic discrimination, and they would not have a good future. She also raised general concerns of violence in Malaysia. At hearing she resiled from the claims set out in her protection visa application.
The Tribunal, for the reasons set out above, has not accepted the applicant’s father was targeted by a gangster, that she was pressured into marriage to pay off the gangster, or that her father was drunk, violent, or beat her or her mother at any time. The Tribunal has not accepted the applicant left Malaysia because her father was harming her. The Tribunal has accepted the applicant was not harmed in Malaysia. The Tribunal has accepted the applicant married her husband on [date January] 2021, their daughter was born on [date], she is currently pregnant, and that she has a continuing relationship with her husband. The Tribunal has accepted the applicant completed secondary school in Malaysia and worked as a [occupation] for two to three years. The Tribunal has also accepted she has retail experience in Malaysia and in Australia she has completed some studies and work experience in [a field]. The Tribunal has accepted the applicant would prefer to undertake further studies in Australia and she would prefer her children to be educated in Australia. The Tribunal has accepted there is preferential treatment given to ethnic Malays in Malaysia, such as in the civil service, government, and universities.
For the following reasons, and having regard to the findings above, the Tribunal is not satisfied there is a real chance that the applicant will suffer serious harm upon return to Malaysia in the reasonably foreseeable future.
To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.
In relation to the applicant’s claim that she and her child, who is not an applicant before the Tribunal, will not obtain a good education in Malaysia, will not have a good future, and will be subject to ethic discrimination, whilst the Tribunal accepts the applicant would prefer to undertake education in Australia and raise her family here, the Tribunal does not find the applicant faces a real chance of serious harm on return to Malaysia in respect of her educational concerns, general concerns for the future, or due to ethnic or racial discrimination.
As outlined above, and discussed with the applicant at hearing, access to education in Malaysia for Tamil Malaysians is high, Indian Malaysians constitute the third largest ethnic group in Malaysia, and there is no information before the Tribunal that indicates it would be a requirement for the applicant or her children to wear a burka in school or be forced to adopt the Muslim religion. The Tribunal does not accept the compulsory learning of Bahasa Malaysia in educational institutions gives rise to a real chance the applicant will face serious harm on return to Malaysia.
As also outlined above and discussed with the applicant at hearing, DFAT assess that Indian Malaysians face low levels of official discrimination and those involved in gangsterism face a moderate risk of violence. In circumstances where the applicant has not been involved in gangsterism in Malaysia, has past employment in Malaysia and [Country 1], has completed her secondary education, and has not been subject to past harm in relation to her ethnicity, race, or for any other reason, the Tribunal does not find she faces a real chance of serious harm on return to Malaysia in the reasonably foreseeable future for reasons of her race or ethnicity or on account of education and other opportunities available to her. Whilst the Tribunal has accepted there is preferential treatment given to ethnic Malays in Malaysia, such as in the civil service, government, and in universities, it does not find this in and of itself, nor the predominance of the Malay language in Malaysia or on signboards, gives rise to a real chance the applicant will face serious harm on return to Malaysia.
The Tribunal acknowledges the applicant has studied in Australia and wishes to undertake further studies and have her children educated in the Australian educational system. However, having assessed the above factors individually and cumulatively, the Tribunal does not find the applicant faces a real chance of serious harm if she returns to Malaysia in the reasonably foreseeable future for reasons related to her ethnicity, race, or in respect of her concerns related to her educational or employment opportunities.
At hearing the applicant raised general concerns about violence in Malaysia and the safety of herself and her family. The applicant commented about situations in Malaysia she had read about or seen in the news, such as a child falling from stairs in a school in Malaysia and the kidnapping of children. She did not claim she or her children were a specific target of harm by any person, authority or group and for any reason. The country information, as outlined above and raised with the applicant at hearing, indicates Malaysia’s overall security situation is generally stable and the police are generally considered a professional and effective force. The threat of kidnapping is high in coastal areas of eastern Sabah. When the Tribunal put to the applicant that on the evidence before it, it may not find she faces a real chance of serious or significant harm if she were to return to Malaysia, she confirmed she is not scared of any specific harm but has a fear harm such as that which she had understood was occurring from the news would happen to her and her family.
Whilst the applicant indicated at hearing she did not go out much in Malaysia and stayed at home, she also described working in [Country 1] and travelling between Johor Bahru and [Country 1], as well as experience working in retail in Malaysia. Whilst the Tribunal appreciates the applicant may have been cautious of her surroundings at times, it does not find she experienced harm at any time in Malaysia, including whilst she was working, or that she was the target of anyone at any time. The applicant confirmed her main fear on return to Malaysia is in relation to education opportunities and the future for her family.
In circumstances where the applicant has not been subject to past harm in Malaysia, including in the years she working and accessed the community, is not a target of anyone in Malaysia, does not have a specific fear of harm from anyone or any group in particular in Malaysia, has not expressed an intention to reside with her children in coastal areas of eastern Sabah, and where the country information provides Malaysia’s overall security situation is generally stable, the Tribunal does not find she faces a real chance of serious harm for any reason on return to Malaysia in the reasonably foreseeable future, including in circumstances where she goes out in the community in Malaysia regularly, such as to socialise or undertake work.
The applicant did not claim, and there is nothing in the material to suggest, that she fears persecution for any other reason in Malaysia.
For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicant returns to Malaysia now or in the reasonably foreseeable future that she faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, the applicant does not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).
Does the applicant meet the complementary protection criterion?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience harm in relation to her ethnicity or race, or on account of educational or employment opportunities available to her, or for any other reason if she returns to Malaysia. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[10]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicant does not face a real risk of significant harm for any reason.
[10] MIAC v SZQRB [2013] FCAFC 33.
On the evidence before it, 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 that she will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to Malaysia that she will be arbitrarily deprived of her life or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
Is the applicant a member of the same family unit as a person who satisfies s36(2)(a) or (aa)?
The Tribunal has accepted the applicant married her husband Mr [A] on [date January] 2021, their daughter was born on [date], the applicant is currently pregnant, and she is in a continuing relationship with her husband.
The Tribunal accepts the applicant is a member of the same family unit as her husband in accordance with s 5(1) of the Act and regulation 1.12 of the Regulations.
On 24 April 2024 the applicant’s husband’s appeal before the Tribunal was set-aside on the basis he satisfies the complimentary protection criterion in s 36(2)(aa) of the Act (Case Number 1731113, Home Affairs Reference [deleted]).
The Tribunal is therefore satisfied the applicant is a member of the same family unit as a person who satisfies s 36(2)(aa).
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 s36(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 s36(2)(aa).
The Tribunal is satisfied the applicant is a member of the same family unit as a person who satisfies the complimentary protection criterion in s 36(2)(aa) and that the applicant therefore satisfies s 36(2)(c)(i).
DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(c)(i) of the Migration Act.
Rachelle Johnston
Member
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.
…

[2024] AATA 3119

6 May 2024

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