2110164 (Refugee)
[2025] ARTA 1156
•13 March 2025
2110164 (REFUGEE) [2025] ARTA 1156 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2110164
Tribunal:General Member F Sneath
Date:13 March 2025
Place:Canberra
Decision:The Tribunal affirms the decision under review.
Statement made on 13 March 2025 at 3:12pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from gangsters after borrowing money – threatened and property damaged – application completed by another person without applicant’s knowledge of contents – small loan from friend for mother’s medical treatment – working in Australia to support mother and brother – no recent contact with friend – occupational training and capacity to earn living – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), (2B)(b), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the then 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 who claims to be a national of Malaysia, applied for the visa on 22 December 2020. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen who holds a protection visa of the same class as that applied for by the applicant.
The applicant applied for a review of the decision by the Administrative Appeals Tribunal on 6 August 2021. 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 11 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the aid of an interpreter in the Malay and English languages.
BACKGROUND
The applicant is a [Age]-year-old man from Sabah, Malysia. In the protection visa application it is claimed that he borrowed money; was unable to pay; that gangsters damaged his car, threw red paint at his house, and threatened physical harm: and worried about the safety of his family, he and his wife came to Australia for security.
Evidence before the Department
The applicant was not interviewed by the Department. The delegate considered the protection visa application and country information as referenced in the decision record.
The delegate was not satisfied that the applicant met the refugee criteria in s 5H(1) of the Act because there were effective protection measures available to the applicant and therefore he did not have a well-founded hear of persecution. The delegate was also not satisfied that the applicant met the criteria for complementary protection finding that the applicant could obtain protection from an authority of the country such that there is not a real risk of significant harm as provided in s36(2B)(b).
Evidence before the Tribunal
The Tribunal had before it the Departmental file, prehearing submissions which included written statements purported to be from the applicant’s brother and a friend/work colleague, oral evidence from the applicant at the hearing and country information including a Report from the Department of Foreign Affairs and Trade[1].
[1] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024
At hearing the applicant gave evidence to the effect of:
a.someone else had written the information in the protection visa application; he had given that person details of his siblings only; the reasons in the application are not his and the information in the statements given to the Tribunal prior to the hearing was not provided by him
b.he has no wife or children
c.he came to Australia to earn more money to support his mother and her medical treatment, and his brother who is caring for her
d.he had a difficult life in Malaysia; in 2010 he borrowed about RM10,000 from a friend to pay for his mother’s medical treatment, and for some money for himself
e.he could not get a formal loan because he was not working and had no fixed income
f.he described the person he borrowed money as a friend and former work colleague
g.he had paid back about RM1,000 but not the rest, and has since lost contact with the friend
h.no one tried to harm him in Malaysia because he could not pay back the money; it is possible that it could happen but the person who lent him the money was a friend not an unlicenced money lender
i.if he had to return to Malaysia his family would suffer hardship because although he could work he would not earn enough to support himself, his brother and their mother’s medical treatment, and pay back the loan.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant has a well-founded fear of persecution, or a real chance of significant harm should he return to Malaysia in the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts the applicant is a citizen of Malaysia, and the claims are assessed against Malaysia as the receiving country. The applicant supplied a copy of his Malaysian passport and other evidence of identification to the Department sufficient for it to be satisfied of his identity and country of citizenship.
The Tribunal prefers the evidence that the applicant gave at the hearing, to the information in the protection visa application. The applicant was forthright in drawing to the Tribunal’s attention early in the hearing that the information in the protection visa application, except that about his siblings, was not provided by him, were not his reasons, and did not reflect his experience. The applicant also later confirmed that the supporting statements provided to the Tribunal pre-hearing were also not representative of his experience. The Tribunal is satisfied that the information given in the protection visa application as to the reasons why the applicant left Malaysia, and in the supporting statements is not correct and therefore gives it no weight.
The Tribunal accepts that the applicant borrowed RM10,000 from a friend in Malaysia and that he has failed to pay back the full amount. The Tribunal accepts that the money lender was a friend and not an illegal money lender associated with any violent or gang related activity. The Tribunal accepts that the applicant has not experienced any harm related to borrowing money from his friend. When asked what would happen if he were to return to Malaysia, the only harm expressed by the applicant was that his family would suffer financial hardship. The Tribunal accepts the applicant’s evidence that he trained as [an occupation] in Malaysia. The Tribunal gives weight to this and finds that he would not be denied the capacity to earn a living or be subjected to such significant economic hardship that it threatens his capacity to subsist.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts the applicant’s oral evidence that no one tried to harm him in Malaysia because he could not pay back the money, that the person who lent him the money was a friend and not a licenced or unlicenced money lender, and that he has lost contact with that person. There is no evidence that the applicant has faced (or will in the reasonably foreseeable future) any harm that meets the threshold of serious harm in s5J(5) of the Act, for any one or more of the reasons in s 5J(a) of the Act. There is no real chance of harm to the applicant if he were returned to Malaysia, in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution. Consequently, the applicant does not satisfy the refugee criteria for protection.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons that the Tribunal has found there is no real chance of serious harm to the applicant if he were returned to Malaysia in the reasonably foreseeable future, the Tribunal finds there is no real risk of significant harm to the applicant if he were returned to Malaysia in the reasonably foreseeable future. Even if the applicant were to face financial hardship if returned to Malaysia, and the Tribunal does not accept this will occur, the Tribunal finds this does not satisfy the criteria for significant harm as provided in s36(2A) of the Act. The applicant does not satisfy the criteria for complementary protection.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) because of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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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