2010144 (rEFUGEE) - [2024] ARTA 779

2010144 (REFUGEE) [2024] ARTA 779 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2010144
Tribunal:General Member A Goldsworthy
Date:10 December 2024

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

General Member A. Goldsworthy

Statement made on 10 December 2024 at 10:15 AM
CATCHWORDS
REFUGEE – protection visa – Malaysia – business closure – economic conditions – financial hardship – business debts – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 16 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old male who claims to be a national of Malaysia. He arrived in Australia [in] October 2019 on a UD-601 Electronic Travel Authority (Visitor) visa. He applied for a Protection visa on 13 January 2020. After being refused the grant of a Protection visa by the delegate, he applied for review on 17 June 2020.
The applicant appeared in-person before the Tribunal on 29 November 2024 to give evidence. He was not represented. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese and English languages. The interpreter and the applicant confirmed that they understood each other and that there were no concerns.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his original Protection visa application, the applicant claimed that he closed his business in Malaysia following a change of government, and that he could not survive financially. He wrote that he did not try to relocate within Malaysia to find work because he did not have enough money. If he returned, he claimed, he would not be able to support himself. He did not think that he would be harmed or mistreated if he returned. No supporting documents were provided.
The applicant provided the Department with a copy of his passport bio-page. He was not interviewed by the Department.
The delegate refused to grant the visa on the basis that:
a.The applicant’s claims did not relate to any of the reasons in s5J(1)(a) and there was no other information to suggest that he would be subject to harm on his return to Malaysia for one or more of those reasons; and
b.The applicant’s claimed harm was not significant harm within the meaning of s36(2A) of the Act.
At the Tribunal hearing the applicant maintained his original Protection visa claim about not wanting to return to Malaysia due to economic hardship, though he acknowledged that the government policies at the time that his business failed had since changed for the better due to new leadership. The applicant said that he wanted to remain in Australia to work.
The applicant did not provide any pre-hearing or post-hearing submissions. He did not provide any documents during the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I accept that the applicant is [an age]-year-old Malaysian citizen and that his receiving country is Malaysia. He was born and raised in Kota Kinabalu in Sabah, Malaysia. His parents are deceased. He has [specified family members] with whom he is in contact approximately every three months, and who still reside in Sabah. [One] brother is separated from his wife and has not worked since he suffered a [medical condition]. He supports himself via a government pension-style payment. [Another sibling] does not work as [their employer] closed down. [They] also [receive] a government pension-style payment. I accept these claims about the applicant’s family of origin.
The applicant said he separated from his wife in approximately 2019 and they have no children. They did not formally divorce as she is [Country 1] and lives in [Country 1], where they married, and he would need to return there to finalise a divorce. I accept that the applicant is separated from his [Country 1] wife and that they do not have children.
The applicant did not finish high school. When he left school after completing [grade] at the age of [age], he studied [a subject] at a private institution, paid for by his mother. After completing these studies he worked as [an occupation 1] at a [business 1]. He then worked as an [occupation 2]. The applicant then opened a small [business 2]. After closing this down he started a [business 3] with a friend, of which he owned 60% and his friend 40%. I accept these claims.
The applicant’s business serviced primarily [specified clients]. The applicant said that after Prime Minister Najib Razak came to power, the Malaysian Government became hostile toward [these clients] and would sometimes refuse them [access to services]. Business worsened as a result and the applicant and his business partner took out a bank loan to continue the business. They were unable to repay it and eventually closed the business a few months before the applicant left for Australia. I accept that the applicant took out a bank loan for his [business 3], was unable to repay it, and that the business failed.
The applicant said that he did not want to return to Malaysia because it was better to work in Australia and it would be more difficult for him financially if he returned. I accept that the applicant would face more financial difficulty in Malaysia than he does in Australia.
I asked the applicant if he had suffered any harm in Malaysia or whether he had any fears of returning, noting that his Protection visa application form had said that he had not experienced harm and did not fear any harm. He said he did not fear anything about returning to Malaysia. The only harm he had experienced was owing people money, though no creditors wanted to harm him, and he did not fear them. He said he would repay his two creditors a total of RM[amount] if he returned to Sabah and could find them. I accept that the applicant does not fear harm returning to Malaysia. I also accept that he owes creditors some money which he has the capacity and intention to repay if he can contact them again.
I outlined my concerns about the applicant’s claims, referencing country information about the economic climate. I put to him that the Australian Department of Foreign Affairs and Trade (DFAT) reported Malaysia to be an upper middle-income country. While acknowledging high income inequality, the report highlighted labour shortages in many sectors.[1]
[1] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Malaysia, 24 June 2024, p.9.
The applicant replied that East Malaysia was different and that the Malaysian Government did not care about that population. He did not want to move to West Malaysia as people there were too clever and the competition in business would be too high.
I referenced country information again, noting that Malaysia had shown strong economic performance over the past few decades, despite a temporary dip due to the COVID pandemic. Malaysia’s unemployment rate was reportedly relatively low, and there was opportunity to find work, including in the applicant’s home state of Sabah.[2] The applicant only replied that he wanted to work in Australia for at least a few more years, which I accept.
[2] Ibid.; Department of Statistics Malaysia. "[3Q 2024] Labour Market Review." OpenDOSM. Last modified November 21, 2024, pp.35-37. >
The general country information available to me and referenced above, indicates that contrary to the applicant’s claim, there is no difference in substance between the employment economy in East and West Malaysia.
The applicant’s claim of being unable to support himself if he returned to Malaysia is not born out in the sources of country information available to me.
Does the applicant satisfy the refugee criterion for protection?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The applicant has had a long history of employment in Malaysia across a number of sectors. He has been able to establish his own business in the past. Furthermore, the applicant was able to establish himself in Australia - a new country with a different language and culture - despite challenges. All of this suggests to me that the applicant has experience and qualifications that will position him well to find work in Malaysia. While I accept that the applicant would face more financial difficulty in Malaysia than he does in Australia, having had regard to the non-exhaustive examples in the Act, I find that this differential will not amount to serious harm. To avoid doubt, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future.
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).
Section 36(2)(aa) requires that the applicant faces a real risk of suffering significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
For the same reasons as were given in paragraph 29, I find that the financial difficulty the applicant would face upon returning to Malaysia will not amount to significant harm as defined in the Act. As such I find that the applicant does not face a real risk of significant harm.
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(s) of hearing:    29 November 2024
Representative for the Applicant: N/A
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.
…