2008245 (Refugee) - [2024] ARTA 583

2008245 (REFUGEE) [2024] ARTA 583 (28 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 2008245
Tribunal:General Member M Brereton
Date:28 October 2024

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

Statement made on 28 October 2024 at 12:03pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – Christian – never experienced harm in Malaysia and did not fear physical or other harm – work and support her family in Malaysia – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65 499
Migration Regulations 1994, Schedule 2
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 13 May 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 August 2018. The delegate refused to grant the visa on the basis that the applicant did not claim to fear harm for one of the reasons in s 5J(1)(a) and the delegate was not satisfied that the applicant will face a real risk of significant harm if returned to Malaysia.
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.
The applicant appeared before the Tribunal by video on 23 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Evidence before the Department
Protection visa application
In her application for the protection visa the applicant said that she had left Malaysia to find a better life and better opportunities. She said that her background and education were basic, and she could not get a worthwhile job to pay her debts, save money, and support her family. She also stated:
I will do whatever possible to make more additional money in order to survive. I did a part job working in [a] club or in the [restaurants]. I worked more than 13 hours a day. It was really hard and hard time for me. I had experienced in sexual harrasment, drugs while working at [clubs]. I had been assault and forced to recieved money for sex service. I had been touched and embarased by customers and many more.
The application included copies of the applicant’s Malaysian passport and identity documents.
The applicant was not invited to an interview and was not asked to provide further information.
Delegate’s Decision
The delegate considered the claims and found that they do not relate to any of the reasons in s 5J(1)(a) and there is no other information to suggest that the applicant will be subject to harm on their return to Malaysia for one or more of those reasons. The delegate considered that economic harm as claimed by the applicant did not meet the threshold of significant harm.
Evidence before the Tribunal
The applicant lodged an application for review with the Tribunal on 14 May 2020. The applicant did not provide any additional claims, information, or documents with her application.
The hearing
On 17 June 2024, the Tribunal invited the applicant to attend a hearing. On 18 June 2024, the applicant requested a telephone hearing. The Tribunal agreed to this request. The matter was listed for video hearing on 23 October 2024.
On the morning of the hearing the applicant emailed two documents to the Tribunal. The first is an offer of admission made to one of her sons by a Malaysian university, dated 28 September 2024. The second is a photograph of the applicant and other members of her community church group in Australia.
The applicant attended the video hearing and confirmed that she consented to proceed by video. The Tribunal asked if the applicant was in a safe, secure, and private location. The applicant said that she was. The applicant’s oral evidence is considered below.
Post hearing submission
On 24 October 2024, the applicant provided a copy of an application to enrol in university in 2025, in respect of another son.
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 the applicant’s desire to support her children in Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant claims to be a citizen of Malaysia. She has provided the Department with a copy of her Malaysian passport and identity documents. There is no information before the Tribunal indicating that she has a right to enter or reside in any other country. The Tribunal finds that the applicant is a Malaysian citizen, and that Malaysia is the receiving country and country of reference for the purposes of this review.
Personal history
The applicant claims that she was born and grew up in a village in the southern part of Sabah. She claims that her family are Christian, that she followed the Christian religion in Malaysia, and that she follows this religion in Australia. The Tribunal accepts her claims and finds that she is a Christian from Sabah in Malaysia.
The applicant claims that she completed high school to [a grade] in Malaysia but had to leave to help support her family. She provided the Tribunal with a work history of jobs in restaurants and [companies]. The Tribunal has no concerns with her credibility and accepts her claims in relation to her education and previous employment in Malaysia.
The applicant married in Malaysia in 1996 and has five sons. She said that she and her husband are still married but they do not get along and she has not had contact with him for some years. She said that he does not work. Her sons range in age from[age] to [age]. The youngest is at school and lives with his father, but the applicant is financially responsible for the son. One of her sons is a [occupation] (who wishes to study in 2025), one is a [occupation], one is a [occupation], and the second youngest has just been accepted into university. They are living in different parts of Malaysia. The second youngest is not working and the applicant is supporting him.
The Tribunal accepts the applicant’s evidence in relation to her family and her financial responsibility.
Claims
The Tribunal asked the applicant about her claims to fear harm in Malaysia. The applicant said that she is not able to work and support her family in Malaysia and has to stay in Australia to earn enough money. The applicant said that she has never experienced harm in Malaysia and did not fear physical or other harm if she returns, but she will not be able to look after her family. The Tribunal asked about the claims in the application relating to sexual harassment, assaults, and drugs. The applicant said that these did not happen to her. She said maybe the person who helped with the application misunderstood her and put these things down. The Tribunal asked if she fears harm for any reasons other than wanting to support her family. She said that was the only reason.
The Tribunal asked about wages and savings. The applicant said that she works as a seasonal farm worker and sends money home when she can. She lived in a caravan park with other workers but is currently in a campsite because the cabins had all been booked. The Tribunal asked if she has debts and she said she took a loan in Malaysia, but she has been able to pay it off since she has been in Australia. The Tribunal asked again if she feared harm for any reasons other than having to support her family and she said no, that is the only reason.
Refugee Criteria
The applicant has not claimed to fear harm for any reasons relating to her race, religion, nationality, political opinion, or as a member of a particular social group. The Tribunal finds that the applicant does not fear harm for any of the reasons specified in s 5(J)(1)(a) of the Act. The Tribunal finds that she does not have a well-founded fear of persecution for any reason or reasons should she return to Malaysia.
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).
Complementary Protection
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
a.they will be arbitrarily deprived of their life; or
b.the death penalty will be carried out on them; or
c.they will be subjected to torture; or
d.they will be subjected to cruel or inhuman treatment or punishment; or
e.they will be subjected to degrading treatment or punishment.
The applicant claims that she will be unable to find work and support her family if she returns to Malaysia. She said that her age ([age]) and education will prevent her finding work. She also said that if she returns, she will have to go to her family village and there is no work there. She said that she cannot live with any of her sons because they have their own lives and responsibilities. She said she does not think she can live in a city because she has to return to her village.
The Tribunal told the applicant about country information referring to the economy and employment prospects in Malaysia. It put the gist of this information to the applicant – that Malaysia’s economy and employment market is strong and improving. The Tribunal did acknowledge that this may be different outside cities but overall, the information may lead the Tribunal to find that the applicant could obtain employment if she returns. The applicant said that this may be the case for politicians, the wealthy, and those not in remote areas, but in places like her village it is almost impossible to find work and support your family. The Tribunal put to the applicant that being unable to find work at a level like she has in Australia, and struggling to support a family, may not meet the definition of significant harm in the Act. The Tribunal invited the applicant to comment, and she said that if she cannot remain in Australia permanently, can the Tribunal give her another two or three years. The Tribunal explained that it was only able to consider whether the applicant meets the criteria for the protection visa.
The Tribunal accepts that the applicant may face difficulties and challenges if she returns to Malaysia. It accepts that employment prospects may not be strong in her village area and that she may find it very difficult to support her family in the manner that she wants to. However, the exhaustive definition of significant harm is set out above. The Tribunal has sympathy for the applicant but is not satisfied that any challenges, difficulties, or other struggles she may face will include, amount to, or lead to, the arbitrary deprivation of her life, the infliction of the death penalty, or torture. There is no information before the Tribunal suggesting that any person or persons will intentionally inflict any harm on the applicant that may be said to be cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal finds that there are not 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 the applicant will suffer significant harm.
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)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
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.
…