2010272 (Refugee)

[2024] AATA 4178

2010272 (Refugee) [2024] AATA 4178 (16 July 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010272

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:John Kotsifas

DATE OF DECISION:  16 July 2024

DATE CORRIGENDUM

SIGNED:16 July 2024

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.    Paragraph 13 should be replaced with:

The most recent report from DFAT at time of hearing was the Country Information Report for Malaysia dated 29 June 2021. The Tribunal has considered this report, together with the most recent DFAT report which was published on 24 June 2024 and other relevant country information referenced in this decision. 2

2.    The text of footnote 2 should be replaced with:

2 DFAT Country Information Report Malaysia, 29 June 2021 and 24 June 2024

3.    The text of footnote 3 should be replaced with:

3 DFAT Country Information Report Malaysia, 29 June 2021 at 2.47 and 5.1 – 5.9

John Kotsifas
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010272

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:John Kotsifas

DATE:16 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 July 2024 at 12:00pm

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – feared harm from the loan sharks – applicant to leave Malaysia was to come to Australia to work rather than to escape the possibility of harm – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a [age]-year-old woman who claims to be a citizen of Malaysia. She arrived in Australia on [date] December 2015 holding an Electronic Travel Authority (Subclass 601) visa and has not departed since that date. She applied for her protection visa on 15 March 2017, nearly 15 months after she first arrived in Australia.

3. On 26 May 2017, the delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia has protection obligations. It would appear, from the applicant’s records, that the applicant was not correctly notified of the decision in 2017 and a new notification of the decision that was made by the delegate was sent to the applicant on 13 June 2020.

4. The applicant applied to the Tribunal for a review of the delegate’s decision on 19 June 2020. The applicant provided the Tribunal with a copy of the delegate’s decision.[1]

   [1] AAT Case: 2010272, Dept File – [deleted]

5. The applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

6. The applicant was not represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

13. The most recent report from DFAT at the time of hearing was the Country Information Report for Malaysia dated 24 June 2024 (the DFAT Report).[2] The Tribunal has considered the Report, together with other relevant country information referenced in this decision.

    [2] DFAT Country Information Report Malaysia, 24 June 2024

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issues in this case are whether there is a real chance that if the applicant returns to Malaysia she will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act 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 she will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

15. Based on the evidence before the Tribunal, the Tribunal accepts and finds that the applicant does not have a right to enter and reside in a country other than their own country of origin – Malaysia. Therefore, the Tribunal accepts that s 36(3) of the Act does not apply to the applicant’s circumstances.

    Country of nationality

16. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained in her Departmental file. She has at all times stated she is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds that the applicant is a Malaysian citizen and has assessed her claims against Malaysia as the country of nationality and the receiving country.

    The applicant’s personal background

17. The applicant was born in Negeri Sembilan, Malaysia. She was married in Australia on 10 May 2020 and has one child, born in Australia on [date]. She met her husband in [Town 1], Victoria in 2019 whilst working on a farm.

18. Her mother resides in Malaysia, and she has been estranged from her father from a very early age and has never known him. She has one brother, who resides in Malaysia.

19. After leaving high school in Malaysia, the applicant was employed [with] numerous employers. Her last position before leaving Malaysia was as a [occupation] in a [store].

20. When the applicant first arrived in Australia, she resided in Perth, Western Australia for approximately one month before moving to [Victoria] in 2016. She worked on different farms between 2016 and 2017, depending on seasonal produce. In 2017 she worked on different farms in [Town 1], Victoria and also worked on farms in Queensland and in Darwin. She returned to [Town 1] in 2022, where she currently resides.

21. She stopped working during her pregnancy but before doing so, she was earning approximately AUD1,200 per week.

22. The Tribunal accepts the above matters to be true.

    The applicant’s original claims for protection

23. Department records indicate that the applicant was not invited to attend a protection visa interview.

    Fear of harm from gangsters

24. The applicant’s original claims were as follows:

    • There are a lot of criminal gangs in the applicant’s home area in Malaysia.
    • The applicant fears that as a female, she may be robbed, raped or killed by members of these criminal gangs.

    ·She cannot relocate to another part of Malaysia because her family cannot afford to relocate.

25. The Tribunal asked the applicant whether she had prepared her own protection application and she indicated that someone had helped her complete the application. She stated that it was the same person that got her a job working on a vegetable farm in 2017.

    Evidence from the hearing

26. The applicant first arrived in Australia on [date] December 2015 when she was [age] years of age. She applied for protection on 15 March 2017, nearly 15 months after she arrived in Australia. The Tribunal asked the applicant why she did not apply for the protection visa when she first arrived in Australia.

27. The applicant stated that the main reason she applied for the visa was that she wanted to work on a vegetable farm in [Town 1] in 2017, but the employer would not employ her without a visa. She told the Tribunal that she had been unlawful after her initial Electronic Travel Authority (Subclass 601) visa expired in March 2016. She confirmed that she was without any visa between March 2016 and March 2017 when she applied for her protection visa. The applicant told the Tribunal that after she applied for the protection visa, she was granted a bridging visa with work rights, and she was then able to be employed on the vegetable farm.

28. The Tribunal asked the applicant if she had ever been harmed or threatened with harm because her original application stated that she had never been harmed whilst living in Malaysia. She confirmed that she had never been harmed whilst living in Malaysia.

29. The Tribunal canvassed with the applicant why she believes she will be harmed by gangsters if she returns to Malaysia, particularly given that there is no indication that she faced harm or experienced any harm in Malaysia whilst living there. The applicant stated that her uncle had borrowed money from loan sharks and had used her mother’s address as his home address. He also used the applicant’s mother as a guarantor for the loan without her knowledge. The applicant stated that her mother realised this when people started to come to the house looking for her brother (the applicant’s uncle) who did not live at the family house.

30. The applicant told the Tribunal that she did not know how much money her uncle had borrowed. She stated that the loan sharks started to harass her mother to the point that in 2014, her mother sold one of her gold bracelets in order to raise money to pay the loan shark some money. The applicant was asked whether this covered her uncle’s loan and she stated that it did not cover the full amount of her uncle’s loan and the small payment made by her mother just kept the loan sharks away from the house for a period of time.

31. The applicant told the Tribunal that after her uncle became aware that she was working in a [store], he started to visit her mother asking for money. The applicant told the Tribunal that her mother was worried about the loan sharks coming to the family home and decided to send the applicant to Australia.

32. The Tribunal asked the applicant whether the motivation for her coming to Australia was to work rather than to escape any harm. The applicant said that her mother sent her to Australia to avoid possible harm from the loan sharks that were frequenting the house looking for her uncle. The applicant told the Tribunal that despite her mother’s fear for her safety, she had never been harmed or threatened with harm by anyone. The applicant also confirmed that her mother had never been harmed.

33. The Tribunal asked the applicant why she didn’t seek to come to Australia sooner or apply for her protection visa soon after arriving in Australia if she felt threatened and unsafe. The applicant told the Tribunal that she could not afford the cost of applying for the protection visa in 2015 when she arrived in Australia.

34. The Tribunal told the applicant that it had to consider whether she would face harm in Malaysia now or in the reasonably foreseeable future. Given that the applicant has been in Australia for nearly 9 years, the Tribunal asked the applicant why she now thinks she will be harmed or might face harm if returned to Malaysia. The applicant told the Tribunal that people, including her uncle, are aware that she has been working in Australia for nearly 9 years and the assumption is that she has a lot of money. She told the Tribunal that she fears that people, including her uncle, will take advantage of her and try to extract money from her if she returns to Malaysia. The Tribunal asked the applicant when she last had contact with her uncle, and she said it was in 2020 when he contacted her for money, but she did not give him anything. The applicant told the Tribunal that her cousin had also borrowed money from loan sharks and had also given the loan sharks her mother’s address without her mother’s knowledge. She told the Tribunal that a police report was filed by her mother complaining about her address being used on a loan agreement without her consent, and this complaint was made to prevent loan sharks from coming to the family home.

35. The Tribunal also canvassed with the applicant other areas of Malaysia that would be safer in her view if she returned to Malaysia and she stated that whilst she could move to another area, it was not practical because she has no other relatives or friends who live anywhere else. She stated that she would return to live with her mother in Cheras, Kuala Lumpur, if forced to return to Malaysia.

    Country information

36. The Tribunal discussed with the applicant the DFAT country information regarding gang activity in Malaysia[3]. The DFAT Report indicates the following:

    [3] DFAT Country Information Report Malaysia, 24 June 2024, at 2.30 and  5.1 – 5.8

    Gang Activity

    Gangs continue to operate in Malaysia. In 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country. In-country sources reported that many street-level gang members were Indian Malaysians, in part reflecting their relative economic vulnerability. In-country sources also reported high-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan sharking. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them due to fear of retaliation.

    Federal and State Law Enforcement Entities

    Law enforcement entities operate at both federal and state levels. The RMP reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. At the federal level, JAKIM standardises syariah law and regulates halal certification for food. It also enforces syariah over Muslims in the three federal territories of Kuala Lumpur, Putrajaya, and Labuan. State Islamic bodies enforce syariah at the state level. The RMP and JAKIM operate independently. While relevant state religious departments or the RMP can investigate misconduct by religious enforcement officers, the RMP is generally unwilling to involve itself in state level religious matters.

    The People’s Volunteer Corps (RELA), a federal paramilitary civilian corps under the jurisdiction of the Ministry of Home Affairs, assists security forces. Private individuals can hire RELA for crowd control at events such as weddings and funerals. RELA membership totals approximately 3 million. RELA engagement in law enforcement activities has significantly reduced in recent years. In 2020-21, RELA were active (together with the army and police) in imposing a nationwide movement control order issued in response to the COVID-19 pandemic.

    State-level Islamic religious departments enforce syariah through Islamic courts and have jurisdiction over Muslims in each state in matters of family law and religious observances. Syariah laws and the degree of their enforcement vary from state to state, although religious enforcement officers can accompany police on raids in all states. The federal law limits some penalties imposed by syariah courts.

    Royal Malaysia Police

    The RMP is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians, and Indian Malaysians.

    According to Transparency International’s 2017 Global Corruption Barometer for the Asia-Pacific region (the latest available), Malaysians perceive the police as one of the most corrupt institutions in the country. External investigations into allegations of police misconduct were previously conducted by the Enforcement Agency Integrity Commission, which was not well-regarded by complainants. From July 2023, such investigations have been carried out by the Independent Police Conduct Commission (IPCC). The establishment of the IPCC was recommended by a Royal Commission in 2005. Due to the number of deaths in police custody and impunity in detention centres, the incoming government pledged to establish such an agency during the 2018 election campaign. In 2020, the then-government re-introduced what observers described as a ‘weakened’ bill, proposing the creation of the IPCC, which came into force in July 2023. SUARAM stated in April 2023 that the body has ‘too many restrictions which will hinder its investigations’ and that it is effectively ‘toothless’.

    In-country sources reported in 2020 that the RMP had engaged in the practice of ‘chain of remand’ whereby police arrest someone, hold them until a court will not or cannot extend their remand, and release them only for police from a different police station to re-arrest that same person. Human rights observers reported that this practice occurred regularly.

    In July 2014, the then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department within the RMP to enhance police integrity and image. SUHAKAM also receives complaints against the RMP and has investigated police behaviour. However, the government is not formally required to consider SUHAKAM’s reports or recommendations. SUHAKAM’s investigation into the disappearance of Pastor Raymond Koh concluded that RMP Special Branch was responsible for the disappearance, but no one was ever held accountable. See also Deaths in Custody.

1. The Tribunal also raised with the applicant current and relevant reports regarding the Malaysian police force’s response to gang activity, which showed that the Malaysian police had been active in arresting gang members and charging them with various offences.[4] These reports indicate that the police investigate, conduct raids and make arrests in relation to such incidents predominately under Malaysia’s Penal Code and the Societies Act 1966. They indicate that the police monitor and prosecute gang activity in Malaysia, with the police stating in 2024 that they will continue to act against all elements connected to gangs, especially those involved in extortion, fighting for territory, drug trafficking and assault.

   [4] Cops cripple five-gang alliance with arrests of 21 | The Star – 29 May 2024, KL cops bust foreign burglary gang behind RM7mil heist in Bukit Damansara | The Star 27 June 2024, Police cripple 5 secret societies in Selangor [NSTTV] 29 May 2024, Bukit Aman team rounds up over 100 suspected gang members in Klang | The Star – 21 Jan 2024, [Updated] 20 men charged with being members of organised crime group 'TR Gang' | New Straits Times | Malaysia General Business Sports and Lifestyle News (nst.com.my) – 8 July 2024, Thug network brought to its knees | The Star – 30 May 2024

2. In response to the DFAT country information and reports about police activity against gangs, the applicant stated that she was not aware of the police activity against gangs as she has been in Australia for nearly 9 years. She stated that she did not know if the police would protect her if she was ever harmed or threatened with harm.

3. The Tribunal asked the applicant if she had ever been harmed or threatened with harm for any other reasons and she confirmed that she had not feared harm for any other reason.

   Findings and reasons

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

5. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the 5 reasons set out in s 5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.

6. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[5]

   [5] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70

7. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is taken into account in these findings.

8. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any, or all, allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[6]

   Fear of harm from gangsters

   [6] Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

9. The applicant confirmed in her original application and in her evidence before the Tribunal that she had never been harmed by any gangsters or anyone else during the time she lived in Malaysia. She also confirmed that none of her family members have been harmed by gangsters in the period she has lived in Australia, a period of nearly 9 years.

10. Her evidence to the Tribunal was that her mother sent her to Australia to avoid the possibility of harm given that loan sharks were coming to the family home looking for her uncle. Whilst the Tribunal is prepared to accept the applicant’s evidence about her uncle’s dealings with loan sharks, the evidence before the Tribunal supports a finding that the primary motivation for the applicant to leave Malaysia was to come to Australia to work rather than to escape the possibility of harm. This conclusion is supported by the applicant’s own evidence that she only applied for the protection visa in 2017 in order to secure employment on a vegetable farm as the employer required her to have a visa before she could start working. The delay in the applicant applying for the protection visa, some 15 months after she first arrived in Australia, also supports the conclusion that the applicant’s fear of harm was not the reason she applied for the protection visa. The Tribunal does not accept the applicant’s explanation for the delay in applying for the protection visa was as a result of any costs associated with the application. The Tribunal notes that the current application fee for the Subclass 866 visa is AUD45 and in 2015 a lower fee applied.

11. Even if the Tribunal were to accept, which it does not, that the applicant applied for the protection visa because she fears harm if returned to Malaysia, the Tribunal finds that the applicant would not face harm now or in the reasonably foreseeable future because there is no evidence that the applicant was harmed or threatened with harm by anyone when she lived in Malaysia, and she has been living in Australia for nearly 9 years, and in that time none of her family members have been harmed or threatened with harm.

12. The Tribunal finds that there is no real chance the applicant would face serious harm in Malaysia now or in the reasonably foreseeable future.

13. Even if the Tribunal were to accept, which it does not, that there is a real chance that the applicant will be subjected to serious harm by gangsters upon being removed to Malaysia, whilst acknowledging that the DFAT Report identifies some problems with corruption in the Malaysian police force, there is no indication that assistance from the police would be withheld from the applicant if incidents of threats of harm were reported to the police. The Tribunal accepts that the police and the courts would be willing and able to offer protection to the applicant and could provide such protection, if she were to return to Malaysia, by the relevant state through its courts or by the police.

14. Moreover, there is nothing to suggest that the applicant could not access such protection, which is clearly durable, and which consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2). Accordingly, the Tribunal finds that effective protection measures, as set out in s 5LA, would be available to the applicant if she returned to Malaysia, so that she did not have a well-founded fear of persecution as required by s 5J(2).

    Does the applicant have a well-founded fear of persecution if returned to Malaysia?

15. The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that the applicant would face a real chance of serious harm now or in the foreseeable future if she returned to Malaysia.

16. For the reasons given above, the Tribunal finds that the applicant does not have a well‑founded fear of persecution as required by s 5J for any of the grounds advanced and it therefore finds that she is not a refugee within the meaning of s 5H.

17. Accordingly, 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

18. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm.

19. In this case, the Tribunal has found that the applicant is a national of Malaysia, and the Tribunal therefore finds that Malaysia is her ‘receiving country’ for the purposes of s 5(1).

20. ‘Significant harm’ is exclusively defined in s 36(2A) as follows:

    (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.

21. The Tribunal asked the applicant whether there was any other reason, apart from what she had already told the Tribunal, why she would fear harm if she returned to Malaysia. The applicant indicated that there was no other reason apart from the reasons she had already explained to the Tribunal.

22. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[7] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.

    [7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297), Flick J at [342]

23. The Tribunal has considered whether the applicant’s claims regarding her fear of harm from gangsters give rise to a real risk that the applicant will suffer significant harm, as defined in s 36(2A) of the Act, as a consequence of being returned to Malaysia.

24. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise: where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

25. For the reasons outlined above and having regard to country information showing that the applicant would have access to police protection, the Tribunal has found there is not a real chance the applicant will suffer serious harm from gangsters or any other persons now or in the reasonably foreseeable future. The applicant has confirmed in her evidence that she was never harmed or threatened with harm whilst living in Malaysia.

26. Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s 36(2)(a), the Tribunal finds that the level of protection from state and other authorities available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. The Tribunal finds that the Malaysian state and its police will provide the applicant effective protection from physical harm. Based on these findings, the Tribunal is satisfied that there would not be a real risk that the applicant would suffer significant harm. Accordingly, pursuant to s 36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia and therefore the applicant does not satisfy s 36(2)(aa) in this regard.

27. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm as defined in s 36(2A) of the Act if she is removed from Australia and returned to Malaysia.

28. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

    CONCLUSION

29. 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) of the Act.

30. 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).

    Family unit member assessment

31. 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 any of the criteria in s 36(2).

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a protection visa.

    John Kotsifas
    Member

    
    

    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.

    …