2000875 (Refugee) - [2024] ARTA 57

DECISION AND
REASONS FOR DECISION
2000875 (Refugee) [2024] ARTA 57 (27 November 2024)
Respondent: Minister for Home Affairs

Tribunal Number: 2000875
Tribunal:General Member D Hughes
Date: 27 November 2024

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

Statement made on 27 November 2024 at 12:47pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – freedom of speech and human rights – no claim of past harm, no further information provided and consent to decision without hearing – consideration of provisions for reaching decision without hearing – country information – some restrictions on rights relating to political opinion and human rights – responsibility to specify particulars and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), ss 106(1), (3)(b)(ii), (c)
CASES
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 January 2020 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 9 September 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria for grant of a protection visa.
On 14 October 2024, the Administrative Appeals Tribunal (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.
Invitation to hearing
The applicant lodged her review application with the AAT on 18 January 2020. Her application for review included a copy of the delegate’s decision under review and the notification of that decision. The decision record contained information about her identity, country of reference, her protection claims, and country advice about the situation in Malaysia.
On 6 May 2024, the AAT wrote to the applicant and requested she complete a ‘pre-hearing information form’.
On 13 May 2024, the applicant wrote to the AAT and provided a completed ‘pre-hearing information form’. She indicated that if she was invited to a hearing, she wished to attend by video, and that she required a Malaysian interpreter. In the section of that form that asked if she wanted to provide any more information about her protection claims, or if there were any other reasons she was afraid to return to her home country, the applicant said:
I don’t want to give more information about my claims for a protection visa. I do not have any other reasons that I’m afraid to return to my home country.
On 20 September 2024, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case. The hearing was scheduled for 2:00pm on 14 November 2024 via videoconference (MS Teams).
The hearing invitation indicated, among other things, that the applicant could consent to the AAT making a decision without her appearing at the hearing. It also stated that if the applicant elects not to have a hearing, the Tribunal’s decision would be based on the information and evidence before it, and that the Tribunal may not make a favourable decision in those circumstances.
On 26 September 2024, the applicant’s representative wrote to the AAT and provided a completed copy of the hearing invitation, indicating the applicant would attend the hearing.
On 19 October 2024, the applicant’s representative wrote to the Administrative Review Tribunal (the Tribunal) and provided a statement from the applicant indicating she would not attend the scheduled hearing and she consented to the Tribunal making a decision on the papers without her taking part in the hearing.
The Tribunal wrote to the applicant on 25 October 2024, confirming her advice that she would not attend the hearing. The Tribunal also asked the applicant whether there was any additional information, evidence or submissions she wished to provide in support of her application for review and, if so, requested she advise the Tribunal of this by 31 October 2024.
The applicant and her representative did not respond to that email.
On 7 November 2024, an officer of the Tribunal contacted the applicant’s representative by telephone to confirm whether there was any further evidence to present to the Tribunal ahead of its determination of this matter on the papers. The representative confirmed there would be no further evidence or submissions from the applicant.
Proceeding without a hearing
The circumstances in which the Tribunal may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (ART Act). They include where an applicant requests the Tribunal to make its decision without holding a hearing of the proceedings: s 106(3) ART Act.
The Tribunal is satisfied that the only parties to this proceeding are the applicant and a non-participating party (the Minister): s 106(3)(a) of the ART Act.
The Tribunal is satisfied the applicant has indicated she would not attend the hearing and consented to the Tribunal making its decision without a hearing. The Tribunal is satisfied her written advice is a request that the Tribunal make a decision without holding a hearing of the proceeding under s 106(3)(b)(ii) of the ART Act.
The Tribunal has before it the Department’s file in relation to this proceeding. There is evidence before the Tribunal of the applicant’s identity, nationality, receiving country, and claims for protection. She also provided a copy of the delegate’s decision, which identifies her claims and the delegate’s findings on those matters. The applicant has reiterated that her protection claims are as advanced before the Department, and she has provided clear instruction to the Tribunal that she did not intend to provide any further information, evidence or submissions in relation to this proceeding.
On the information before it, the Tribunal is able to determine the applicant’s identity, nationality and receiving country, and assess her claims against the criteria for a protection visa in ss 36(2) of the Act without seeking further evidence or submissions from her.
In view of the above, it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the party to the proceeding for the purposes of s 106(3)(c).
In the circumstances, the Tribunal has decided to make a decision in relation to the application, after considering the documents and things given to the Tribunal, and without holding a hearing of the proceeding: s 106(1) of the ART Act.
BACKGROUND
Evidence before the Department
According to her application for a protection visa, the applicant is a [Age] year old citizen of Malaysia. She was born in Sabah Province and she is ethnically Malay and a Muslim. She indicates that she can speak, read and write both Malay and English. She travelled to Australia [on] June 2019 on a visitor visa.
In terms of her claims for protection, the applicant states that Malaysia does not yet truly have the right to freedom of speech and does not have freedom to fight for human rights.
She indicates that she did not experience harm in Malaysia, but she states her life would be threatened if she returns to her country. She claims she is ‘under risk’ and it is ‘very stressful to face everything.’ She also claims she has ‘always been disturbed’ by someone she never knew. However, she also indicates that she would not be harmed if she returns to Malaysia.
She states that the authorities will not provide protection as these are self (personal) matters. She further states that she did not move to another part of the country for safety. She states she is not trying to move to another country, because she believes here is a safe place to start a new life and there are lots of job opportunities she can do in the future. She cannot relocate if she returns to Malaysia as her life is under risk.
The applicant provided a copy of her Malaysian passport and Malaysian identity card, which confirms her identity, citizenship, religion and address in Sabah.
In refusing her application for a protection visa, the delegate considered country information about political expression in Malaysia. The delegate concluded that there was not a real chance or risk of the applicant facing serious or significant harm on return to Malaysia.
Evidence before the Tribunal
The applicant provided the Tribunal with a copy of the delegate’s decision dated 17 January 2020. Beyond her response in her pre-hearing information form on 13 May 2024 in which she indicated she did not have any other reasons that she is afraid to return to Malaysia, she did not make any submissions to the Tribunal, nor did she provide any 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 criteria for grant of a protection visa. For the following reasons, the Tribunal has determined that the decision under review should be affirmed.
Identity
The applicant provided the Department with a copy of the biodata page from her Malaysian passport. The delegate accepted her claimed nationality and there are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a national of Malaysia.
There is no evidence or advice before the Tribunal to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Malaysia is her receiving country and has assessed her claims against that country
Claims for protection
In her claims for protection, the applicant states that Malaysia does not yet truly have the right to freedom of speech and does not have freedom to fight for human rights. She indicates she is under risk and it is stressful to face everything. She also refers to being disturbed by someone she never knew or did not know, but provides no further detail. She indicates she has not been harmed in the past. She does not consider she can relocate in Malaysia or obtain protection from the authorities.
The country advice before the Tribunal indicates that there are rights to freedom of speech and expression in Malaysia, however these rights are restricted. For example, there are restrictions and sensitivities around what Malays call ‘the three Rs’ (race, religion, or royalty). More broadly there is tolerance of political expression and protests, and persons are not generally at risk of violence on the basis of their political affiliations. DFAT indicates that human rights groups that criticise the government face a low risk of official discrimination in the form of legal harassment and physical and electronic surveillance by law enforcement authorities.[1]
[1] DFAT, Country Information Report – Malaysia, 24 June 2024
While the applicant’s claims for protection are clear, and the country advice indicates the potential for some issues for persons and groups that are critical of the government or outspoken on sensitive political issues, or involved with human rights groups, it is not clear from the applicant’s evidence what her political views are, whether she has expressed (or would express) those views, whether she has been (or would be) associated with human rights or human rights groups, or whether she has faced any harm for those reasons in the past. She also has not indicated what her specific concerns are if she returns to Malaysia. She has referred to being disturbed by someone she did not know in Malaysia, but she has provided no details about the context of those issues, the level of disturbance, or whether she fears harm on return to Malaysia for those reasons.
Section 5AAA of the Act provides that it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish their claims. When she indicated she did not wish to attend a hearing and wanted a decision on the papers, the applicant was given a further opportunity to provide any additional supporting evidence or submissions, but she did not wish to do so.
The Tribunal is not required to make the applicant's case for them, nor is it required to accept uncritically any and all of the allegations made by an applicant.[2]
[2] Randhawa v MILGEA (1994) 52 FCR 437
Given the limited and general nature of her protection claims, the Tribunal does not accept that the applicant has faced harm or would face harm for reasons related to freedom of speech in Malaysia or the freedom to fight for human rights. The Tribunal does not accept she has been or would be politically active or outspoken on political or human rights issues, or that she has been or would be involved in human rights, human rights groups or other political organisations, or that she would face harm for any of these reasons in Malaysia, now or in the reasonably foreseeable future.
The Tribunal does not accept that her life would be threatened if she returns to Malaysia, or that she is under stress or at risk of harm for these reasons if she returned to Malaysia. The Tribunal does not accept she has been disturbed by someone she did not know in Malaysia, or that she will face harm for any of these reasons if she returns to Malaysia, now or in the reasonably foreseeable future.
The applicant has not advanced any other claims for protection.
Does the applicant satisfy the refugee criterion for protection?
Given the assessment and findings above, the Tribunal is not satisfied the applicant would face a real chance of harm or serious harm for any of these reasons, if she were to return to Malaysia, now or in the reasonably foreseeable future.
It follows that her fears of persecution for these reasons are not well founded and she does not satisfy the criterion in 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).
In view of the assessment and findings above, the Tribunal is also not satisfied that there is a real risk[3] that the applicant will face harm or significant harm for any of these reasons if she returned to Malaysia.
[3] MIAC v SZQRB [2013] FCAFC 33
It follows that the Tribunal is not satisfied 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. The applicant does not satisfy the criterion in 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).
The Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no claim or evidence that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Hearing date: Nil
Representative: Mr Michael Huang (MARN: 0639694)
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.
…