2109283 (Refugee) - [2024] ARTA 795

2109283 (Refugee) [2024] ARTA 795 (6 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2109283

Tribunal:General Member J McLeod
Date:6 December 2024

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

Statement made on 6 December 2024 at 4.50pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – Chinese and Melanau ethnicity – victim of loan shark – threats from criminal gang – financial hardship – attack on home – fear of killing – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a national of Malaysia. She first arrived in Australia on a visitor visa in November 2013. She departed [number] days later and returned again on another visitor visa in February 2015 and has not departed. She applied for the protection visa on 16 December 2020 claiming to fear harm from a moneylender someone else had fraudulently borrowed from under her name.
The applicant’s case was decided on the papers on the basis of country information. The delegate found that effective protection measures as defined in s 5LA of the Act would be available to the applicant, and that the applicant could obtain protection from the Malaysian authorities such that there would not be a real risk of her suffering significant harm. As such, the delegate found that the applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) and on 13 July 2021, refused the grant of visa.
The applicant applied for the Tribunal’s review of the delegate’s decision on 21 July 2021 and on 8 October 2024, her case was constituted to me, the presiding Member, for consideration and review. The applicant was invited to attend a hearing to give evidence and present arguments. This hearing took place in person on 30 October 2024, with the assistance of an interpreter in the Malay and English languages.
At the hearing, I advised the applicant that she could still provide any further information or evidence in the two weeks following, and that a decision would not be made before 13 November 2024. I also advised that any requests for an extension of that time could also be made before that date and would be considered. However, it has now been more than four weeks since the hearing and the applicant has neither provided any further information or evidence, nor sought an extension.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
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). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Applicant’s background
The applicant’s claimed nationality, identity and background, as described in her documentary identity evidence, information provided in the applicant’s protection visa application and discussions the Tribunal had with the applicant in the Tribunal hearing, is as follows:
-She is a Malaysian citizen who was born to Malaysian citizen parents in Sarawak state in [specified year]. She is now [age] years old. She is a Christian (Roman Catholic) and is of Malaysian Chinese and Melanau ethnicity[1] (her parents being from different ethnic groups).
-Her parents divorced when she was [age] years old and she continued living with her mother until she came to Australia. Her [specified family members] and her mother still live together in Miri, in a rented home, supported by the applicant. Her mother is unwell. [A] brother lives and works in Bintulu and has his own family. Her father converted to Islam and re-married, though she has not spoken to him since just after she came to Australia in 2015.
-She completed her schooling in Miri, Sarawak then did a few years of online study in a university‑level [course] through a university based in Kuala Lumpur. She continued to live in Miri and just studied online as she could not afford to pay rent elsewhere. She did not complete her studies because she needed to work, to help support the family.
-She worked as a clerk in [business 1s] in Miri (the first only for a few months) and the second for around five years.
-Apart from passing through Brunei travelling to and from Sabah, and coming to Australia, she has never travelled to any other countries.
-She first came to Australia for a short holiday in November 2013. She then returned in January 2015. On this most recent entry, she was scammed by an agency she paid to help her get a work visa and ended up working illegally and being exploited by some farm employers. Eventually, she learned about the protection visa, and someone helped her complete and lodge her application, and she was able to get work rights. Since 2021, she has been working in a [specified business].
[1] The Melanau people are an ethnic group indigenous to Sarawak, Malaysia.
Protection claims and evidence
While the applicant provided some additional details at the Tribunal hearing on 30 October 2024, her oral evidence was substantially consistent with the claims she raised in her protection visa application in 2020.
She claims she left Malaysia because she was being chased by an unlicenced moneylender/loan shark over a debt her boss at the [business 1] had taken out under her name and identity.
The [business 1] she worked for was a small firm owned by a [people] who treated her well most of the time and she thought of as family. However, they badly mismanaged the firm’s finances and regularly used clients’ [money] for their own purposes. They also failed to pay into the Employer Provident Fund (similar to superannuation) for their employees and eventually they were also failing to pay the employees’ wages.
About six months before the applicant came to Australia (so around mid-2014), one of their [clients] realised that [money] (which he had given to the firm) hadn’t been paid to the relevant authority within the required timeframe. The client came to the office and threatened to report the applicant’s bosses over it and her bosses, knowing they couldn’t recover the money quickly and worried about their reputation, got the applicant to take out a loan to cover the expense. One of her bosses accompanied her to see the loan shark and get the loan. This required the applicant to provide her identity card, payslip and bank card and give details of her home address, workplace and phone number. The principal amount she borrowed was MYR[amount], plus about MYR[amount] monthly interest.
Her bosses only made the first repayment, then they stopped paying, and from then on, the loan shark hassled the applicant. Her bosses had also kept delaying her salary payments and then failed to pay her at all, so she resigned from the firm two to three months after taking out the loan. Because of this, the applicant had been unable to make her car loan repayments and her car was repossessed by the bank. She was stressed and depressed.
As it was the applicant’s bosses who had in fact received the loan shark’s money, the applicant did not pay the loan sharks; she doesn’t feel this would be fair. Nor did she have the money to pay, given she wasn’t being paid and had ended up resigning.
The loan sharks wanted her to pay anyway. They called the applicant and threatened her, and they visited her home (which was owned by her uncle) while she was out. Her mother said that two men had come looking for her and threatened to harm her and throw red paint on the house if the applicant didn’t pay. Her mother told her another time that a car was waiting nearby, and they returned at least a third time and smashed a window and threw red paint. However, by that time, the applicant and her family had moved house, for her safety, to a place about an hour away. The loan shark didn’t know where they moved to and never went to the new home.
The applicant’s last contact with the loan shark was in 2015, after she came to Australia. They called and sent threatening messages but as that phone broke at the end of December 2015 and the data couldn’t be retrieved from it, she hasn’t been able to provide them as evidence. The last time she heard anything about the loan shark from anyone else was in 2016 or 2017. Her mother had encountered one of her colleagues in 2016 or 2017 who advised that in 2016, the loan shark had come to the [business 1] office looking for her and seeking information on her whereabouts. However, only her mother, [and family members] know she is in Australia.
She believes, however, that the loan sharks (or people working with or for them) will find her and harm her (by beating, kidnapping or killing her) if she returns to Malaysia. She believes the loan sharks have ways of tracking people down and she is aware that one of the loan sharks’ men is her school friend’s brother. She also believes they would find her in other ways, including by informants when she applies for a job, or in the event that she purchases property.
Before she came to Australia, the applicant tried to seek help from the police. However, they weren’t interested in helping her because on their view, she had engaged an unlicenced lender and borrowed the money herself, at her own risk. They told her she shouldn’t have borrowed from an unlicenced money lender; it isn’t right. She explained the money had been borrowed by her company using her name and ID, but they said as there was no black and white evidence of who borrowed the money, they couldn’t help. She believes the police would not be willing to act until after the loan sharks harm her.
She also has concerns about facing financial hardship and being discriminated against in Malaysia because she is not Muslim and because of her age.
ANALYSIS AND FINDINGS
Factual findings
I accept the applicant’s claimed nationality, identity and background, as summarised above. I find that for the purpose of this review, Malaysia is her receiving country.
I have considered the applicant’s case carefully, and whether adverse inferences ought to be drawn from things such as the lengthy (five‑year) delay between the applicant’s arrival in Australia and applying for protection, her omission at the primary stage of details such as about her family moving house and the red paint being splashed on the old house after they moved and the lack of any independent corroborating evidence. I have also deliberated on the plausibility of the applicant, with some [professional] experience, taking on the risk on behalf of her bosses by getting involved with an unlicenced lender or loan shark and taking out the loan without proper evidence that the loan was for them, and without proper protection for herself.
However, I accept her explanations on these matters and found her oral evidence to be convincing. I accept the applicant believes some paperwork may have been lost when she and her family moved house and that the photographic evidence and call logs/messages from the loan shark were lost when her old phone broke, and the data could not be retrieved. I accept that she was scammed and exploited during her first five years in Australia. I accept she believed that the agent she paid had applied for a visa on her behalf and that when she discovered the truth, she was working illegally under exploitative conditions and was too frightened to come forward until she learned about the protection visa in 2020. I accept that she then paid someone to complete the protection visa form and that some details may have been omitted from the application despite her efforts. I am also mindful that she never had the opportunity to provide additional details or explanations via an interview during the primary assessment stage. I consider these reasons all go to reasonable explanations for the lack of evidence, the delay in lodging and the delay in raising certain details before the delegate made their decision. I have not, therefore, drawn any adverse inferences against the applicant’s credibility on the basis of any of these matters.
As for plausibility, I find that the applicant’s oral evidence about the problems at her [business 1] and the circumstances in which she ended up borrowing money from a loan shark were believable. She recounted the firm’s issues and usual practices and the incident which prompted the borrowing with sufficient detail and in such a manner which seemed consistent with someone drawing from their professional knowledge and recalling their personal experience. I also consider that her descriptions of the harassment from the lenders in calling her both before she left Malaysia and in 2015, visiting her home and threatening her mother once at the old house and going to the workplace in 2016 after she left were plausible and unembellished. It is also plausible that her mother believed a car was waiting near the house and that someone splashed the old house with paint and smashed a window after they moved.
Overall, I found the applicant’s claims and evidence to be credible. I accept the applicant has genuine fears of being harmed in relation to the loan shark loan, and that she also has fears of financial hardship and facing discrimination on the basis of her race and age.
However, for the reasons set out below, I nevertheless find that she does not meet the refugee or complementary protection criteria.
Assessment against the protection visa criteria
Loan shark problem
Is the essential and significant reason for the harm feared a s 5J(1)(a) refugee reason?
At the hearing, I raised with the applicant that she did not appear to be fearing harm for a refugee reason, that is, because of her race, religion, nationality, membership of a particular social group or political opinion. I explained to that if that’s the case, she would not meet the definition of a refugee. She was invited to comment and in doing so, she confirmed that her reasons for seeking protection related to the information she had provided about the loan and loan shark. I have considered the applicant’s claims and circumstances. I find that she does not fear harm from the loan shark for the essential and significant reason of her race, religion, nationality, membership of a particular social group or political opinion. She does not therefore meet the criteria in ss 5J(1)(a) and (b) of the Act. On this basis she is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
Does the applicant face a real chance or a real risk of harm in the reasonably foreseeable future?
I have considered the information from DFAT indicating that loan sharks operate openly in Malaysia and that those who do not repay loans face serious harassment and can face violence. DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available, but it is often ineffective.[2]
[2] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Malaysia, 24 June 2024’.
However, for the reasons that follow, I do not accept this applicant, in her particular circumstances, faces a real chance of any harm, nor a real risk of any harm in relation to the loan shark issue.
As I raised with the applicant during the hearing, there are reasons to doubt that the loan sharks will try to find and harm her upon return. These include the following:
-She wasn’t seriously harmed in the three to four months she remained in Malaysia after the loan sharks started hassling her for the money.
-While the loan sharks once visited her mother in their previous house, once returned and smashed the windows there after the family moved and once went to her workplace, it seems they did not take any other steps to find her once she and her family moved house, or after she came to Australia.
-The applicant has been in Australia since January 2015, so almost 10 years. Her last contact with the loan sharks was in 2015, and she last heard anything about them in 2016/17 (seven years ago).

The applicant has suggested that her family might have been withholding information from her about the loan sharks so as not to worry her, but there is no evidentiary basis for this – I consider it to be unsupported speculation.
The applicant has submitted that there are various ways that they could find her if she went back. She mentioned she could be found as her school friend’s brother was associated with the loan shark, but as I put to her, if that were the case and they wanted to find the applicant and/or retrieve their money from her, I consider they would have been able to locate her family members and pressure them for information or money. She responded that she and the family had moved, but if she returns, they will hear about it when she applies for jobs or buys a property, because they can trace information and they also use informants in different industries. She said that a property purchase would attach a caveat statement that she owes money. However, the applicant has not provided any evidence which would support these assertions, and as I raised with her, if the police and authorities are not interested in involving themselves in issues involving unlicenced moneylenders as she claims, it is difficult to see how the loan sharks would be able to enforce the loan on the basis of such a caveat about owed money. Further, while I accept the applicant’s goal is to buy a house for her mother, she agreed that is still years off. She has said that she cannot afford rent and is still trying to get her financial situation in order, though she intends to save. In that sense, even if they could track her through a property purchase, this is not a reality now, and nor do I accept it would be in the reasonably foreseeable future.
I am mindful that the applicant and her family moved house and that she herself has not been around and has been out of the country, but there are lines of enquiry (e.g. through friends, the school friend’s brother, ex-colleagues, the uncle who owned their previous house or their former neighbours) the loan sharks could have pursued, and I consider that if they had tried any of these avenues, the applicant’s friends or family would have some information to share with her. There is no evidence to indicate they have been making any effort to find her or her family or to obtain information about her whereabouts.
Having considered the applicant’s evidence overall, while I can accept that the applicant is subjectively afraid, I do not accept that the loan sharks or anyone have been seeking her out for many years. I do not accept that anyone would be motivated to find and harm her if she were to return to Sarawak or any part of Malaysia now or in the reasonably foreseeable future. I do not accept she will be pursued over this debt. Given this, I am not satisfied that she would face a real chance or a real risk of any harm in relation to the loan if she returns to Malaysia.
Therefore, in relation to the loan from the loan shark, as well as finding she does not fear harm for a s 5J(1)(a) reason and does not meet the refugee criteria on that basis, I also find that the applicant does not face a real chance of any harm upon return to Sarawak or any part of Malaysia now or in the reasonably foreseeable future. She does not meet s 5J(1)(b) and therefore does not have a well-founded fear of persecution under s 5J(1), and she is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for the complementary protection criterion, noting that my above finding related to ‘any harm’ and that ‘real chance’ and ‘real risk’ involve the same standard,[3] I find that in relation to the applicant’s claims about the loan shark, there are not substantial grounds for believing that there is a real risk she would suffer significant harm from the loan sharks or anyone else, as a necessary and foreseeable consequence of being removed to Malaysia. I find she does not face a real risk of any harm relating to these claims. Accordingly, I find that the applicant does not meet s 36(2)(aa).
[3] MIAC v SZQRB (2013) 210 FCR 505.
For the sake of clarity, the applicant has not indicated that she fears any investigation or consequence in relation to the financial mismanagement or misconduct of her [business 1] and the evidence does not point to her being of any adverse interest to the authorities. She approached the police already in relation to the loan shark issue and she has not indicated that she felt any concern approaching the authorities, or that she feared she may be accused of having any culpability. I am not satisfied she fears harm for such reasons or that she faces a real chance or a real risk of facing investigation, prosecution or any harm as a result of her involvement with a firm engaged in misconduct.
Economic hardship and discrimination claims
The applicant is a Christian (Roman Catholic) and is of Malaysian Chinese and Melanau ethnicity (her parents being from different ethnic groups), and she is [age] years old. At the hearing, the applicant raised concerns about being in financial hardship and facing discrimination because of her racial and religious profile and her age.
She said that Muslim Malays are given priority for jobs and other things. I asked the applicant whether she has been personally impacted because of her ethnicity and she responded that she had applied for government jobs but had not even been granted interviews. She said Muslims are the first priority and non-Muslims like her are second‑class citizens. She referred to the fact that she is now older, [age], and this will impact her employment opportunities. She also indicated her employment chances are affected by her ethnicity and religion.
I explained that I would need to consider what the impact of such things might be for her, and whether it would amount to serious and significant harm. I discussed with her the concept of serious harm and whether anyone would deny her the opportunity to do some kind of work and earn a living and whether her capacity to subsist would be threatened. I noted to her that she had been able to obtain employment in the past and support her family. I noted that while she may face discrimination and be rejected from some jobs, I would need to consider whether she could obtain some kind of job that would support her subsistence. She responded that working in a job outside one’s field, the salary would always be very low and will not be able to match the cost of living. I put to the applicant that it did not appear as though anyone would intentionally try to prevent her from earning enough money, and while economic conditions and competition for employment can have a serious impact on people in Malaysia, it would not necessarily trigger Australia’s need to provide with her with protection. She did not comment.
I take the applicant’s concerns about these matters seriously and I have considered relevant country information on the matter, and how the applicant may be affected in her particular circumstances. I accept that at [age] years old (even though this would still be a reasonably young age in Australia), the applicant may face some age discrimination. I am mindful, too, of her being non-Muslim and in the minority – being a Christian and a person of mixed race from the Chinese and Melanau communities.
Malaysian Chinese people are a minority ethnic group in Malaysia, making up they make up 22.8 per cent of the population. I accept that they do face some discrimination. DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector. However, overall, DFAT also states that Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia.[4] Chinese Malaysians freely participate in political life and while many do not apply as they believe the Bumiputera will be given the roles, they are not precluded from the Malaysian Civil Service or government sector employment. And while in the business sector they report discrimination and claim unequal access to certain industries compared with Bumiputera, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian‑owned.[5] DFAT reports that other ethnicities say they are discriminated against in the Chinese-dominated corporate sector, and that many jobs require Mandarin language skills, which effectively excludes non-Chinese, even though the language of commerce is chiefly English.[6]
[4] DFAT, 'DFAT Country Information Report Malaysia', 29 June 2021, 20210629092134; DFAT, 'DFAT Country Information Report Malaysia', 24 June 2024.
[5] DFAT, 'DFAT Country Information Report Malaysia', 29 June 2021, 20210629092134; DFAT, 'DFAT Country Information Report Malaysia', 24 June 2024.
[6] DFAT, 'DFAT Country Information Report Malaysia', 24 June 2024.
I note that the United States Department of State make no reference to racial discrimination against Chinese Malaysians in their most recent report, except for there being more limited (but not no) opportunities than the Bumiputera in higher education and government employment.[7] This is consistent with DFAT’s reporting. It is also noted that there are no specific concerns about racial treatment of Chinese Malaysians noted in recent reports from key human rights bodies, for example, Suaram (Suara Rakyat Malaysia) or Amnesty International.[8] The country information does not support a finding that Chinese Malaysians face treatment amounting to serious or significant harm in Malaysia on account of their race or ethnic identity.
[7] United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Malaysia', 22 April 2024, 20240502105551.
[8] Suaram (Suara Rakyat Malaysia), 'Malaysia Human Rights Report 2023', 27 March 2024, 20240327165904; Amnesty International, 'State of the Worlds Human Rights 2024', 23 April 2024, 20240424131540.
The other part of the applicant’s ethnic profile is Melanau. Melanau are an ethnic group indigenous to Sarawak. According to DFAT, many indigenous people in Sabah and Sarawak live outside urban areas and have limited access to schooling and healthcare. Some Indigenous people in Sabah and Sarawak have experienced land grabs by property developers because they do not have formal title over their land. DFAT assesses that the indigenous peoples of Malaysia face a low risk of official discrimination in the form of inadequate service provision and failure to uphold and protect customary land rights.[9] I accept DFAT’s assessment but neither DFAT nor the USDOS or the other sources consulted support a finding that the Melanau people face treatment amounting to serious or significant harm in Malaysia on account of their race or ethnic identity. The information does not suggest, either, that persons of mixed Chinese and Melanau ethnicity face discrimination or other treatment amounting to serious or significant harm.
[9] DFAT, 'DFAT Country Information Report Malaysia', 24 June 2024.
As for Christians (and I note the applicant was born Christian rather than coming to the religion through conversion), DFAT assesses that Christians are generally not at risk of societal discrimination. Christians who proselytise or promote Christianity to Muslims face a moderate risk of harassment by state authorities, potentially including violence or abduction.[10] Neither DFAT nor other sources before me suggest that Christians, including Christians who are Chinese Malaysians, Melanau, or persons who are mixed of those races, face discrimination amounting to serious or significant harm.
[10] DFAT, 'DFAT Country Information Report Malaysia', 24 June 2024.
I do accept that the applicant may be somewhat impacted by discrimination as a result of her ethnicity and religion and her age, and that she may also be impacted by her being out of the [professional/more corporate] work industries for several years. I accept that she may find it difficult (though not an impossibility) to obtain comparable work to what she used to do in Sarawak. I also accept that her earning capacity in Sarawak, or more broadly across Malaysia in any industry, may be lower than it is in Australia. It accepts too that at [age] years old, the applicant may face some age discrimination as well as some challenges relating to work experience and qualifications. I accept that competition for employment is tough and that she is not in the group of who might be prioritised as candidates. I acknowledge that the applicant will face some discrimination and that she may experience hardship on account of all this.
However, even accepting that the applicant may experience some discrimination and may have fewer opportunities than a younger worker (and a more experienced or qualified worker or a Muslim Malay person), and noting, too, that her earning capacity in Malaysia may be lower than it is in Australia, the Tribunal does not accept that in her circumstances, she will face discrimination that will rise to the level of serious harm, nor other problems related to her economic circumstances that would amount to serious harm. The Tribunal takes into account that the applicant has work experience in clerical [roles] and she has diversified her experience and potential job references somewhat, working in a completely different industry in Australia. The Tribunal also notes country reporting that Malaysia’s economy has recovered since the pandemic and unemployment is at 3.4 per cent, the lowest level since the pandemic. There are labour shortages in many sectors and small medium and large enterprises are reliant on migrant labour. Having regard to this information and the personal circumstances of the applicant, the Tribunal is not satisfied the applicant will be unable to find some kind of work and earn a living, and, if it is necessary, contribute towards supporting her mother, and the payment of her car loan debt to the bank.
The Tribunal is not satisfied that the applicant would be denied the capacity to earn a livelihood of some kind, even if it is not [the type of] clerical work as she did before, or suffer significant economic hardship such as would threaten her capacity to subsist. Nor is it satisfied she faces a real chance of any other harm that would amount to serious harm arising from difficulties finding work, or economic challenges, or any other impacts of discrimination. Nor is the Tribunal satisfied that such difficulties or challenges would themselves amount to, or otherwise lead to, a real chance of the applicant facing any harm that would amount to serious harm.
The Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis. She does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
The Tribunal is also not satisfied there is a real risk of the applicant facing any harm that would amount to significant harm as it is defined in the Act. There are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. Accordingly, the applicant does not meet s 36(2)(aa).
CONCLUSIONS
I have sympathy for the applicant. She has worked hard, and she found herself in difficulty, and she has been working to try to help her mother improve their situation. However, having considered the applicant’s claims in their totality, I am not satisfied she will face a real chance of serious harm or a real risk of significant harm from anyone in Malaysia on account of the loan shark issue, or her ethnic or religious profile, or her age, or her economic circumstances, or any combination of those reasons. Even when considered cumulatively, I am not satisfied that the applicant has a well-founded fear of persecution, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Malaysia, there is a real risk she will suffer significant harm.
For the reasons given above, I am 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). I am 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa. The Tribunal affirms the decision under review.
Hearing date:            30 October 2024
Representative:        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.
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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.
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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.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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