2007129 (Refugee)
[2025] ARTA 1098
•24 January 2025
2007129 (Refugee) [2025] ARTA 1098 (24 January 2025)
Decision and Reasons for DecisionRespondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2007129
Tribunal: General Member A McMurran
Date: 24 January 2025
Place: Sydney
Decision: The Tribunal affirms the decision under review.
Statement made on 24 January 2025 at 12:27pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – participation in political rally – detained, beaten and monitored – arrived on visitor visa, application for student visa unsuccessful and period as unlawful non-citizen – no further political activity and claim largely abandoned – fights with mother and harassment and discrimination as Indian Tamil Hindu – work history and employment/income prospects – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
DFQ17 v MIBP [2019] FCAFC 64
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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.
In accordance with s 369 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
Statement of reasons
APPLICATION FOR REVIEW
This is an application lodged 8 March 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 14 August 2018 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 [Age]-year-old national of Malaysia, applied for the visa on 3 May 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee criteria assessed under s 36(2)(a) of the Act.
Applicant’s Review History
On 13 September 2018, the applicant sought review in the Administrative Appeals Tribunal (AAT). The AAT did not hold a hearing. On 8 October 2018, the AAT found it did not have jurisdiction to hear the review application.
This was because the AAT found the application had not been lodged within the relevant time limit. According to the AAT, the application was required to have been lodged by 10 September 2018. It was not in fact received by the AAT until 13 September 2018.
The AAT decision had the effect that the delegate’s decision was affirmed.
Remittal
The applicant sought review of the AAT decision in the Federal Circuit Court of Australia.
On 25 March 2020, the Circuit Court1 found that the applicant had not been correctly notified of the decision, and followed the judgement in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17). The matter was then remitted to the AAT to be dealt with according to law.
No findings have yet been made as to the claims from the substantive application lodged in May 2018, other than by the decision-maker in the initial refusal decision.
On 16 April 2020, the AAT had written to the applicant at his Sydney address informing him of the remittal.
ART Transition
The issue in this case is whether the applicant meets the refugee criterion in section 36(2)(a) of the Act.
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 in place of the AAT.
1 Judge [name]
This application continuing before the Tribunal now differently constituted from the AAT, may consider previous events as dealt with by the Department, and the AAT, and with any information previously submitted.
This ART review deals with the applicant’s claims as originally made in his application, and whether the delegate’s decision of 14 August 2018 should be affirmed or set aside.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
Details of the applicant’s reasons for claiming he will suffer serious harm if he returns to Malaysia are contained in his handwritten application in answer to the question why he left that country.
His written claim states that :
· He was a participant in a Bersih2 rally [in] April 2012
· He was detained because of “a little havoc (which) happened in 2012”.
· The rally was organised against the incumbent government of Najib Tun Razak3.
· He was released in 24-hours, but his involvement “was disastrous”.
· Police spied on him and he was compelled to leave his studies and “ran to my uncle’s house in Kuala Lumpur”.
· He was “followed by the so-called police guys till I lost myself”.
· His parents were blackmailed with phone calls and his life was threatened.
· He sought help from police unsuccessfully who did not “report anything”.
· Police will not protect him because of his attendance at a Bersih political rally [in] April 2012.
· People who followed him afterwards in 2012 were from the government, and police would continue to spy on him on his return to Malaysia.
The applicant was asked about these claims and for his responses in the Tribunal hearing. His responses and discussion with the Tribunal are dealt with below in these reasons.
BACKGROUND
The applicant came to Australia [in] January 2017, arriving as a tourist on a visitor visa. The visa ceased on 15 April 2017.
In about August 2017, the applicant had applied unsuccessfully for a student visa to study at
[College] in Melbourne. He informed the Tribunal that as he was unable to
2 Malaysian Coalition for Clean and Fair Elections where ‘Bersih’ means ‘clean’ in Malay [ Malaysian Prime Minister from 2009-2018
afford the $500 per month for the student fees, his application was subsequently refused on 14 August 2017.
The Department’s details of the applicant’s visa history reveals that he was an unlawful non- citizen for a time from 18 September 2017 until 23 May 2018, before making his protection visa application.
After his failed student visa application, the applicant said he had met someone in Melbourne who took him to Queensland where he had “remained for about a year” and done some work on a farm. He returned to [City] in New South Wales where he was informed about Protection visas and said he then sought some legal advice.
The result of that advice was the applicant bringing his Protection visa application in May 2018, when he was living in [City], and making the claims as set out above. He said he was told he could “make the application by myself”, hence, it appears in handwritten form. He said he had no assistance in preparing the application.
The applicant explained his family background. His parents [and sisters] all live in Malaysia, about 2 hours from Kuala Lumpur. He said they are all working, and safely living in Malaysia. He said other than a cousin, he has no other relatives in Australia. In [City], he said he had been living with “2 Tamil boys” and doing some casual work.
He said he came to Sydney “at the end of 2019 or early 2000”. He said he is now living in Sydney and his maternal cousin, who is on a working visa, is paying his rent. He said he had applied unsuccessfully to work, but presently has no work rights.
Tribunal Hearing
The applicant appeared before the Tribunal in person on 6 January 2025 at 1:30 PM to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages. The Tribunal did not detect any issue concerning interpretation from English into the Tamil language. No issues were raised and the applicant confirmed he had understood the process and the interpreter.
The applicant was represented for the review hearing. The representative did not attend the hearing.
The Tribunal had received an email on 11 January 2025, following the hearing, stating the representative had made “several attempts” to contact the applicant unsuccessfully. The email followed an earlier email on 6 December 2024 where the representative had explained that “the applicant has not been in contact with us for some time”.
When asked about this at the hearing, the applicant confirmed he did not require the services of the representative and would change his contact details, which he did at the counter on completion of the proceedings, and now requires the Tribunal to deal with him directly.
The applicant was asked if he was ready to proceed. He claimed he wanted the matter to proceed as scheduled, and did not require time for submissions or to seek advice. The Tribunal explained to him the process which he appeared to understand. The Tribunal explained it was considering his application that he was a refugee, and whether he should be granted protection in Australia.
The Tribunal explained to him that it was important he had an opportunity to tell the Tribunal whatever he thought was important in support of his application claiming protection from Australia.
Evidence before the Department
The Department had considered the written application. It was not accompanied with any other documentation or written submissions, such as witness statements, media reports, photographs or any other evidence of the applicant’s activities. No information was provided about the applicant’s attendance at a Bersih rally in April 2012.
The applicant was not invited to an interview. He did however attend an identification test with Department officers on 2 July 2018. The applicant was then identified based upon his passport, and fingerprinted, and there were no issues raised by the Department with the biometric testing. The identification test established the applicant’s nationality as a Malaysian citizen of Tamil ethnicity.
Identity accepted
The Tribunal has accepted the identity assessment. The applicant also produced his original passport at the hearing for the Tribunal, which also served to identify him.
Evidence from the hearing before the Tribunal
The applicant confirmed he was responsible for the Protection visa application to the Department and that the contents of the application were true. The Tribunal does not have the benefit of a written transcript from the hearing. The Tribunal however has summarised below from the applicant’s oral evidence his submissions to the Tribunal in support of his application.
When asked why he was afraid to return to Malaysia, the applicant stated that in Malaysia “I was discriminated”. He told the Tribunal that before coming to Australia, he was living at home and that he “fought with my mother, I was always fighting with her”. He said that “Malays would come and harass me and want to fight with me”. He said that his mother had told him “ to go and live somewhere else because you are the problem”.
He was asked about the problem with the Malays. He said: “They would not let me do any work in Malaysia”. He believes the only way that he could obtain work was to leave the country. He said he had tried living in different places in Malaysia and had left his home for about 3 or 4 months before coming to Australia. He said he moved about one hour away to stay with a friend and could not find a job.
He was asked about his work history in Malaysia. At first he said, “I can’t remember”, and then responded that he had done “some [occupation] work”. He stated that he had in fact also worked for a [company] as a “leading hand/supervisor” for 3 years from 2014 until 2016. He said then he had been “fired”, so “I came to Australia.” He said he wanted to study in Australia. A friend had told him to do an English course before applying for another visa to get a qualification. He said he had enrolled in an English course as a student which he commenced on 20 June 2017.
He said he was compelled to leave the course in about July 2017 because he could not pay the course monthly fees when they were due. He said he was contacted by someone and told his student visa would not proceed and he thought it was cancelled, although in fact according to Department information, it was never issued as the application was refused on
14 August 2017. He thought this was because the institution informed the Department that he had not paid the fees.
He was asked about being an unlawful non-citizen for a period when he was not holding a visa which permitted him to stay. He said he did not know about that or what to do until a friend helped him. The Tribunal put to him why he had not returned to Malaysia when he did not have a visa. He replied simply, “I could not go back”.
He was asked to elaborate. He said when living in Malaysia: “Many people would not give me work. I could not open a bank account. I could not do anything. I could not make my mum happy. This continued for a few months. People wanted certificates to see what training I had.” He said that because he did not move away, his mother “was not happy and got angry with me”. He said his mother did not appreciate his true situation and that he was in fact “trying”.
He was asked why he chose Australia as a destination. He said when he did leave home for a few months, the friend he stayed with had been to Australia before. The friend told him he could obtain a certificate after he was trained and then return to Malaysia and get “the job you want”. He was told that he should go to Australia and get qualified and then return. He told the Tribunal he thought that “even if I were qualified now, I don’t know if I would get a job, I can only go and try”. He said that he could also try in [Country] if he went back if he could not get a job in Malaysia.
He said he was afraid to return because he did not think he would find work and his mother would not be happy and would not support him. He said his mother was focused on “getting my sisters married, and my father’s income is only enough for the family”. The gist of his submission was that without income from working he would be a burden on the family and not appreciated.
He was asked if there was any other reason why he would not return. He said: “No other reason. I don’t want to go back.”
He was asked whether he had a criminal record in Malaysia or history of any trouble there, which might be the reason he could not return. He said he had “done something” which resulted in him being detained by police. He was asked to elaborate. He said when he was about 18, he was arrested because he had “taken the family’s jewellery and gave it to the neighbours”. He said the neighbours had refused to return it, and his mother took him straight to the police station. He said he was held by the police for 3 weeks. At the end, he said “they let me go and I had to report every month for 6 months.” He said: “The police dealt with it. I didn’t have to go to court. But they beat me up.” The applicant gave no reason why he had taken the family’s jewellery in the first place.
He thought that had all happened many years ago and he had not been back to police after the 6 months was up. He said he had not had any other interaction with police and no other activities that had drawn him to police attention. He said he had voluntarily and freely left the country in January 2017.
He was asked about obtaining his passport to leave the country and he said: “I had to pay a bribe to get my passport because I had to leave the country and I just wanted to run away”. He was asked why he had to pay a bribe. He explained that in Malaysia every time you want something it does not happen, or the document you need does not issue, unless you pay whatever is demanded.
He was asked if he had experienced any other problems while living in Malaysia. He said he has always felt discriminated against “because I am Hindu”. He was asked if he was aware
of current circumstances in Malaysia. He referred to the Bumiputera (ethnic and indigenous Malays) who are privileged. He said immigrant Malays who are Muslim are also privileged and “taking work”. He agreed he might be “out of touch” and things may not be as dire as he was making out.
The Tribunal put to him country information4 to the effect that there were three principal ethnic groups in the country comprising Bumiputera (62%), Chinese (20.06%) and Indian (6.2%), the balance being made up of non-citizens. Most of the Indian population are Tamil speakers. The Tribunal explained that DFAT assesses that Indian Malaysians face “moderate levels of official discrimination”5 and which the Tribunal accepts is challenging generally for those Indian Malaysian citizens.
The Tribunal had been waiting for the applicant to raise the issues claimed in his application about his political activity.
The applicant at this point was asked if he had any other reasons for not returning. He was reminded about his claim to have participated in a political rally in 2012. He said that he had been involved in 2012, only once, and that afterwards “I was beaten so I didn’t do anything further after that”, meaning no further Bersih activity.
He was asked why he had had made that claim in answering the question in the application form. He said it was because it came up in discussion with his friend when he was considering what to do to stay in Australia. He said that since 2012 “I have not been involved”. He said he was not a leader of any protest or a political protester in Malaysia, and nothing had happened to him since then. He said he had been struck with a baton during the rally in 2012, but nothing else had happened.
The applicant did not elaborate further about any political activity. He gave no further information or details or any particulars of the claimed blackmail of his parents, or having been followed or spied upon by police or threatened.
He did not proceed to elaborate on any of the claims in his written application. He did not refer to having been detained by police, which appears did not happen at all but for the incident described concerning the family jewellery. He made no comment about the failure by police to make any report when he sought help. There is no evidence these things occurred at all, or that the applicant had the need to seek help and protection at any time from police.
He was asked if he wanted to put anything else to the Tribunal for consideration. He responded that “I don’t know what will happen at the moment. Because I am Indian I’m going to suffer discrimination.”
The Tribunal had put to the applicant during the hearing country information which supports the view that ethnic Malays and immigrant Muslims are privileged as opposed to minority Chinese and Indian citizens. It is a discrimination issue which affects all ethnically Indian persons living in the country, not just the applicant. The applicant spoke about his local knowledge in 2016 about discrimination between the ethnic groups and that his Indian ethnicity was a problem, particularly in obtaining employment. He gave only a generalised account about difficulty in obtaining employment because of his ethnicity, and notwithstanding he had held a job as a work supervisor for 3 years from 2014 until 2016, before his departure to Australia.
4 DFAT report on Malaysia 24 June 2024
5 DFAT Report at 3.22
He said he would like to remain in Australia and obtain a qualification certificate so he can return to get a job in Malaysia. He said his goal was to educate himself while in Australia to promote his work prospects back home. He said he did not know what course he would need to study or undertake and has not yet met anyone who can advise him and he has made no decision in that regard.
At the end of the hearing, the Tribunal explained it would have to consider his evidence in order to determine whether there was a real chance he would be seriously harmed on his return to Malaysia. The applicant had nothing further to submit.
The applicant did not seek any further time to make additional submissions, which the Tribunal thought was not warranted in any event as the applicant was no longer represented and had made no attempt to enquire from whom he might seek further advice and had not determined what he might decide to do.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The Tribunal has the same written material as was before the delegate including his statement in the application form as summarised above from the question and answer.
The Tribunal has had the benefit of a lengthy oral hearing with the applicant in person. No witnesses were called by him and no additional information submitted. The Tribunal has had regard to the Act and Regulations. It is also mindful of its objective under the ART Act to provide an independent mechanism of review that is fair and just, and ensures that applications are resolved as quickly and with as little formality and expense as a proper consideration of the matters before the Tribunal permits.6
The Tribunal has listened carefully to the oral evidence at hearing, which makes little reference on the applicant’s part to the particulars of the claims set out in his application form that he is a person who fears returning because of his association with Bersih, as a political protest movement for free and fair elections, and as a result of which he would be seriously harmed. No such claim was made at the hearing.
Section 5J of the Act refers to the meaning of a ‘well-founded fear of persecution’ in order to be a refugee at law, and which must be on the basis the applicant fears persecution for reasons of his race, religion, nationality, membership of a political social group or political opinion.
Following the hearing, the Tribunal finds that the applicant was most concerned in his oral evidence about his race, and ethnicity as a Tamil Hindu, and because he is discriminated against in terms of his employment prospects. Coming to Australia was an opportunity for him to improve those prospects by becoming qualified in something. The ‘something’ was not identified either in the original claims made to the Department or in the additional claims now made to the Tribunal.
Refugee criteria in the Act
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
6 ART Act, section 9.
‘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, and 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.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of claimed fear, or that it is ‘well-founded’ for the reason claimed. Simply asserting something in an application form carries little or no weight. There generally needs to be some factual basis for making findings other than simply accepting what is said. There needs to be relevant particulars and information upon which the decision-maker can reasonably rely.
Some assistance is gained objectively from country information and understanding things from explanations provided, such as an accepted historical contextual background, and which includes current information, where provided, about the context which now applies as at the time of decision. Those are matters for the applicant to identify where relied upon.
The review process for decision-makers is now well-established from court authorities. The Tribunal is not obliged to assist the applicant in making a claim7 or to go behind the applicant’s reasons for his decision and to make further enquiry of him in that regard. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or
7 S 5AAA of the Act
obligation to establish, or assist in establishing, the refugee claim. The Tribunal is also not required to accept uncritically any and all of the allegations made by an applicant.8
In the Tribunal’s deliberation of the evidentiary considerations, the applicant must stand or fall upon his own presentation and the facts he relies upon in terms of persuading the decision-maker that he faces a ‘real chance’ of persecution.
The Tribunal can empathise with cultural and language differences, and hearing-anxiety, but nonetheless cannot speculate about facts or fill in the blanks where they exist about what may have happened. Facts are either evident and logical or they are not, insofar as they are relied upon to demonstrate the applicant meets the ‘refugee’ criteria.
The applicant in this instance has added no information since his original claims in 2018. The facts have significantly shifted from the outset where the applicant feared Police spies, being blackmailed, and receiving no help, and fear he ‘will be killed’, to the decision stage, where little reliance is now placed on any of those things first asserted, and his stated primary concern is not being sufficiently qualified to compete at home in a discriminatory work environment, based upon his ethnicity as an Indian and Tamil Hindu.
The Tribunal must have regard to what is submitted and whether it meets the refugee criteria on the basis of what the applicant now provides.
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.
The Tribunal has also had regard to the evidence before the Department and the Tribunal, the Act and Regulations, Department policy, and relevant court authorities.
REASONS AND FINDINGS
The Tribunal has listened carefully to the applicant’s oral evidence and considered all the available information. The Tribunal finds that it does not accept that the applicant holds a ‘well-founded’ fear that in the reasonably foreseeable future, he will suffer serious harm if he returns to Malaysia.
This is because, in summary:
·the applicant has significantly changed his claims;
·he originally asserted persecution because he had been involved with the Bersih movement at a rally in April 2012, and which he believed (in 2018 on lodgement of the application) would result in him being pursued by police, spied upon, blackmailed, or even killed if he remained in Malaysia;
·the applicant provided no evidence of being pursued by police, spied upon, blackmailed or threatened while he was in Malaysia after 2012, or before his departure in January 2017;
8 (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
·the applicant now claims his principal concern is racial discrimination, which might result in him having difficulty with employment; this is a new claim not originally raised nor relied upon; no evidence was provided of any discrimination directed personally at the applicant;
·his evidence was that he may have difficulty finding employment because of his ethnicity, a circumstance which affects many ethnic Indians living in Malaysia;
·the applicant gave no details or particulars of attempts he had made to find employment before leaving for Australia. He preferred instead to rely upon generalisations about difficulties that ethnic Indians may have in seeking employment;
·the applicant said he had worked successfully as a supervisor for 3 years from 2014, until the end of 2016 when he was “fired”, and almost immediately in January 2017 came to Australia; there was no evidence of any attempts at other employment;
·the applicant gave no evidence of being harmed by police, other than being struck by a baton when attending a rally in April 2012; he denied being arrested as claimed in his application; he gave no evidence of having been threatened;
·his application claims he had to “run to Australia” because of threats to kill him, but he gave no evidence of any such threats as to when, how or by whom they were made;
·the applicant’s focus at the hearing and his genuine ‘fear’ or concern is that he cannot return to Malaysia without a qualification from Australia which might then improve his job prospects, but he has not identified what qualification he wants or how he proposed to obtain that;
Having considered the available information, the Tribunal finds that it does not accept the claims made in the application. The Tribunal rejects the applicant’s fears on his return that he might be seriously harmed or killed and the evidence does not rise to the probability that there is a real chance in the foreseeable future that the applicant will be seriously harmed.
The applicant has lived in several parts of Malaysia and has contemplated moving to [Country]. Malaysian passport holders do not need a visa to travel to [Country] where the applicant could freely travel should he choose to do so. He has further not stated he has any problem living anywhere in Malaysia.
The Tribunal is satisfied on the facts as recounted at the hearing by the applicant that in assessing the reasonable likelihood of any foreseeable persecution on his return to Malaysia, that probability is remote.
The Tribunal finds that it is unlikely the past events concerning the applicant and his attendance at a Bersih rally will be resurrected by Police or threats from anyone at all. No such person has been identified and given the lapse of time since 2012, the Tribunal finds that there has been no evidence of any continuing interest in him whatsoever, either before 2016 or since his departure to Australia in January 2017.
The Tribunal finds that the reason the applicant wants to remain in Australia is not for fear of returning to Malaysia that he will be seriously harmed, but rather for economic reasons pertaining to his future employment and possible income and so that he will not be a burden to his family and may then receive his mother’s approbation rather than her disapproval.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal finds on all the available information that there is no real chance of harm if the applicant were returned to his home area of the receiving country, Malaysia, in the reasonably foreseeable future.
The Tribunal is further satisfied that were the applicant to return to Malaysia he would be able to rely upon local Police protection against any threats to his person, where multiple local and international sources consider the Royal Malaysian Police to be an effective and professional police force9.
The applicant has introduced no evidence to suggest otherwise and his claim that police might spy on him or have him followed or even killed are entirely rejected. The Tribunal finds those claims are not supported by the available evidence, were not raised at the hearing, and were exaggerated in the written application in order to support the applicant’s claims to fear harm in his receiving country.
The Tribunal finds that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has found from the available information before it that there is no real risk of significant harm or serious harm to the applicant in the foreseeable future. This is for the reasons as set out above and which apply equally to the question raised by consideration of complementary protection as applicable to this applicant.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of Hearing: 6 January 2025
Representative: Nabin Shahi (Migration Agent)
9 DFAT Report at 5.5
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.
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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.
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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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