2008879 (Refugee)
[2024] ARTA 791
•2 December 2024
2008879 (Refugee) [2024] ARTA 791 (2 December 2024)
Decision and Reasons for Decision
Respondent: Minister for Home Affairs
Tribunal Number: 2008879
Tribunal: Alexandra Stratigos
Date: 2 December 2024
Place: Brisbane
Decision: The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – involvement in an MLM Scheme – willingness to return the money to her friends/colleagues – not a real chance that the friends/colleagues would pursue and harm the applicant – applicant does not have a well-founded fear of persecution – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 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 26 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 18 December 2019. The delegate refused to grant the visa on the basis that the applicant’s claims do not relate to any of the reasons in s 5J(1)(a) of the Act and that there is no real risk that the applicant will suffer significant harm as outlined in s36(2)(aa) if returned to Malaysia.
The applicant appeared before the Tribunal, via Microsoft Teams, on 21 November 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
The applicant claims to be a single a woman from Malaysia. The applicant arrived in Australia on [date] October 2019 and lodged her application for protection with the Department of Home Affairs (the Department) on 18 December 2019.
Evidence before the Department
The evidence before the Department included the protection visa application and biodata page of the applicant’s passport.
The Tribunal also had access to the delegate’s decision. The delegate’s decision indicates that the applicant was not invited to attend an interview.
The protection visa application does not contain any family history, travel history or employment history. The applicant claims to be Chinese, Muslim and her preferred language is Malay. The applicant claims to have completed schooling up to middle school and indicates that she lived in the same address in Kedah since birth.
The applicant claims that she worked in sales. She was prosecuted and forced to pay damages to a customer to the value of MYR10,000 for goods not provided to a customer in good order. Subsequently, the company that the applicant worked for was shut down without notice resulting in loss of employment and an inability to support herself and her family.
The applicant then received phone calls from the customer threatening to report the applicant to police if the applicant did not return the funds that she had spent on the goods. The applicant claims that the fault was not hers and the company that she had worked for was at fault. Despite the applicant’s instance that the fault was not hers, the customer continued to call to harass, intimidate and insult the applicant and her family.
The applicant then decided to depart Malaysia to seek protection in Australia as she had lost her career, her property and her dream. The applicant claims she felt her safety was threatened.
In the application the applicant claims she didn’t seek any help from authorities or try to relocate.
The applicant asks that she be granted protection and permission to work so she can feel safe and have freedom.
Evidence before the Tribunal
Prior to hearing the applicant did not provide to the Tribunal any further evidence in support of her claims, and she did not have any documentation in support of her claim. The applicant attended a hearing conducted by Microsoft Teams on 21 November 2024.
The applicant says that she completed her protection visa application herself however someone she met on [social media] before coming to Australia provided her with some assistance over the phone. The applicant’s claims differ from her claims in her initial protection visa application. At hearing the applicant was given sufficient opportunities to outline any reasons why she could not return to Malaysia and the Tribunal accepts that her sole reason for leaving Malaysia and the concern she had for returning is as follows.
The applicant further outlined her family and work history at the hearing. She claims to have lived her whole life in Kedah, and she lived at two addresses being the family home and the second was a rental property from 2017. She is one of seven children and her parents and siblings all still live in Kedah.
The applicant claims to have completed schooling up to high school. She worked in two jobs after finishing school: the first in 2017 with a [company], and the second in 2018 where she worked in a factory. In her work at the factory the applicant was earning MYR1,500 per month.
The applicant claims that she left Malaysia as she had threats from friends/colleagues who wanted to hurt her. The applicant claims to have been working at a factory in 2018 when she introduced eight of her friends/colleagues to a MLM Scheme1 and they invested a collective total of MYR5,000. The applicant has since learnt that the investment was a scam. The return on their investment never eventuated and the friends/colleagues were of the belief that the applicant had taken their money instead.
One day the colleagues/friends came to the applicant’s home at about 2 or 3am and threatened her. Following this the applicant was afraid and couldn’t think clearly enough to call the police. She did contact her cousin who is studying in Australia, he told the applicant to come to Australia and he would help her out.
The applicant claims that if she returns to Malaysia she will run away and try to keep her distance from the colleagues/friends, however she is unsure if she will be able to avoid them. The applicant initially said at hearing that she was afraid that if she came near to the friends/colleagues she would face trauma. She claimed that she is a woman, and she is afraid that they might physically harm her.
The applicant claims that if she calls the police for help they would be unsympathetic as the MLM Scheme was a scam and the police would ask the applicant questions about the missing payments.
The applicant claims that the friends/colleagues threatened to hurt her to get their money back, they never inflicted any physical harm on the applicant. The applicant did not expand on the specific harm that she would face, only stating “they wanted to hurt me”.
1 MLM Scheme being a Multi-Level Marketing Scheme, referred to throughout this decision as a MLM Scheme as this was the terminology used by the applicant.
The applicant was asked if any formal court proceedings of any type were carried out against her in Malaysia as she had mentioned in her initial application that she had been prosecuted; she said there had not.
Since being in Australia the applicant has saved up approximately AUD20,000 and sends about AUD1,000 a month back to family.
It was suggested to the applicant that the friends/colleagues may no longer be interested in getting their money back given that it has been six years since this occurred. The applicant claims that she’s unsure if they she will see them if she goes back, however she is sure that if she does they would ask for their money back.
The Tribunal asked the applicant if she could pay the money back. It was also put to the applicant that she appears to have sufficient funds available to pay these friends/colleagues back. The applicant said that maybe she would find the friends/colleagues and return the money to them.
The Tribunal sought to confirm that it was only those eight friends/colleagues who the applicant may have problems with if she returned to Malaysia; the applicant responded: “yes I believe so, but I will try to pay back what I owe them.”
It was further suggested to the applicant that if for any reason she couldn’t pay the money back she could move to another city in Malaysia to avoid harm; the applicant responded: “I will go back and pay.”
It was also suggested to the applicant that if she did face problems she could contact the police for assistance, the applicant responded: “I think I will be safe.”
The applicant was repeatedly asked if she had any further concerns or fears of returning to Malaysia, or if she had anything further she would like to tell the Tribunal; the applicant did not.
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 has well-founded fear of being persecuted if returned to Malaysia for one or more of the five reasons set out in s5J(1)(a), and, if not whether 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 the applicant will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and Identity
The applicant has provided a copy of her Malaysian passport and there is nothing to suggest that this is not a true reflection of her identity; based on this the Tribunal is satisfied that the applicant is a citizen of Malaysia.
There is no information before the Tribunal which suggest that the applicant has a right to enter and reside in any third country. Accordingly, the Tribunal is satisfied that s 36(3) of the Act does not apply. The Tribunal is satisfied that the country of reference is Malaysia.
Assessment of claims
The applicant’s claim for protection relates to threats she has faced due to her involvement in an MLM Scheme.
At hearing the applicant’s claims differed from her initial protection visa application submitted to the Department, however at hearing the applicant was asked multiple times for any reasons why she could not return to Malaysia and she offered only one reason. The Tribunal
therefore accepts that the reason stated at hearing was the sole reason for her departure from Malaysia and formed the basis of any fears of returning.
The applicant claims that her problems in Malaysia steam from her introducing her friends/colleagues to a MLM Scheme that turned out to be a scam, consequently the friends/colleagues accused the applicant of retaining their MYR5,000 collective investment that they had made and began threatening the applicant in an effort to have their funds returned. Given that the initial application referred to conflict around a sum of MYR10,000, the Tribunal sought to clarify with the applicant whether she meant MYR5,000 for each of the 8 people or if the total investment was MYR5,000, the applicant clarified stating that the: “total for all eight is 5,000”.
It was put to the applicant that it does not appear that the essential or significant reason for the harm she fears relates to any of the reasons in 5J(1)(a); the applicant said that she had fears under ‘particular social group’, stating: “I got threatened from this particular social group”, the Tribunal then clarified that she needed to be a member of a particular social group not the people harming her, to which the applicant said “no”.
Tribunal asked the applicant multiple times whether she may face any other problems on return to Malaysia and the applicant said no, the Tribunal has also considered whether the applicant may be at risk of any other harm that is apparent on the face of the application. The applicant did state at hearing that she fears trauma if she comes into contact with the friends/colleague, when asked what trauma she fears she replied: “I’m a female, I am worried that they might physically harm me”; however, the Tribunal does not accept that the essential and significant reason for the harm feared relates to her gender.
Accordingly, the Tribunal finds that the applicant has not made any claims that fall within any of the reasons in s5J(1)(a), and rather that the claimed harm relates to her specifically due to the conflict arising following her involvement with the MLM Scheme.
The applicant stated at hearing that she has been working in Australia and has saved
$20,000. At hearing it was put to the applicant that she appears to have sufficient financial resource to be able to return the money and that if she did so her friends/colleagues would no longer pose any threat to her. The applicant acknowledged that she has sufficient financial resources to pay the money back that the friends/colleagues claim she owes, and the applicant further said that she would pay back what was owed, and that she thinks she will be safe if returned.
The Tribunal further finds that even if a reason for the harm falls within s5J(1)(a), in any event s5J(3) applies to the applicant. The applicant stated at hearing that she would be able to pay the money back to the friends/colleagues and then would be safe; the Tribunal therefore finds that applicant does not have a well-founded fear of persecution as she could take reasonable steps to modify her behaviour, namely by paying the money back to the friends/colleagues in circumstances where she has capacity to do so, to avoid a real chance of persecution in Malaysia. The Tribunal notes that none of the exceptions in s5J(3)(a), (b) or
(c) apply to this behaviour modification.
The Tribunal also finds that given the applicant’s capacity and willingness to return the money to her friends/colleagues there is not a real chance that the friends/colleagues would pursue and harm the applicant. The Tribunal also finds that the harm that the applicant may face if returned to Malaysia does not amount to serious harm.
Given these findings the Tribunal therefore finds that the applicant does not meet the refugee criterion in s36(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).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. Based on the applicant’s evidence given at hearing relating to her willingness and ability to pay the money back to her friends/colleagues, the Tribunal finds that the applicant can and will repay the money if she encounters those friends/colleagues on return to Malaysia. On this basis the Tribunal finds that there is not a substantial ground for believing that as a necessary and foreseeable consequence of the applicant being removed to Malaysia there is a real risk that she will suffer significant harm.
At hearing the applicant was also questioned on what aspects of significant harm the applicant was at risk of and the applicant said that she was not at risk of significant harm as described by 36(2A); accordingly, the Tribunal also finds on this basis that harm that the applicant may face if removed to Malaysia does not amount to significant harm.
Accordingly, 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.
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.
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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
…
(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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