2111371 (Refugee)
[2025] ARTA 771
•24 March 2025
2111371 (REFUGEE) [2025] ARTA 771 (24 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2111371
Tribunal:General Member F Sneath
Date:24 March 2025
Place:Canberra
Decision:The Tribunal affirms the decision under review.
Statement made on 24 March 2025 at 11:27am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from former boyfriend for refusal to marry – application prepared by another person and claims admitted to be false – age and employment prospects – country information – low unemployment and labour shortages in many sectors – work history in home country and Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 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 23 August 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 21 March 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and 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 (AAT) on 28 August 2021. On 14 October 2024, the 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 13 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The applicant is a [Age]-year-old woman from Sarawak, Malaysia. She has never been married. She arrived in Australia [in] December 2019 on a visitor visa. In the protection visa application, she claims to be unable to return to Malaysia because she fears harm from a former boyfriend whom she refused to marry.
Evidence before the Department
The applicant was not interviewed by the Department. The delegate considered the protection visa application and country information.
The delegate found the applicant did not meet the refugee definition in s5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as provided in s36(2)(a) of the Act. The delegate was satisfied that effective protection measures as defined in s5LA were available to the applicant in Malaysia and therefore the applicant does not have a well-founded fear of persecution under s5J(2) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Malaysia, that there is a real risk the applicant will suffer significant harm, and therefore was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.
Evidence before the Tribunal
Information before the Tribunal was the Departmental file which included the protection visa application, and country information. The applicant made no pre-hearing submissions.
Early in the hearing the applicant gave evidence that someone else had prepared the protection visa application and confirmed that the information in the protection visa application was complete and accurate. The applicant also gave evidence to the following effect:
a.that she came to Australia in December 2019 because she wanted to come to celebrate the new year
b.she paid for her travel from her savings and had arranged to stay in a hotel in Melbourne
c.she had a return airfare which she had to forfeit when COVID prevented her return travel to Malaysia
d.she rented a hotel room in [City] for four months as it was cheap for her to stay there and she had enough savings
e.she spoke to foreigners who were also at the hotel in [City] about her visitor visa which was going to expire, and they referred her to the person who prepared the protection visa application
f.she likes to travel and has taken holidays in other countries
g.there are no other reasons why she came to Australia
h.she has not returned to Malaysia because she is comfortable in Australia and has a good job as [an occupation 1]
i.she previously held a position as [an occupation 2] in Malaysia for 16 years
j.if she returns to Malaysia she doesn’t think it will be possible to get a job; nothing prohibits her from working but it will be difficult because of her age
k.there is nothing preventing her returning to Malaysia, and if she is forced to return she will accept it.
The Tribunal put to the applicant that it had been explained to her that she needed to be a recognised as a refugee or entitled to complementary protection to be eligible for a protection visa, and that from the information she has provided it does not appear that she will face serious or significant harm if she returns to Malaysia. The applicant said she had nothing to say about that.
The Tribunal put to the applicant that her protection visa application refers to a person who had made stories up about her and threatened to harm her. The applicant had nothing to say in response to that. The Tribunal asked the applicant whether she had no response to that because the information was not true. The applicant responded (through the interpreter), ‘Yes, I’ll be honest. It is not true. I don’t want to lie.’
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 fears persecution or significant harm if she returns 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 her Malaysian passport and other evidence of identification to the Department sufficient for it to be satisfied of her identity and country of citizenship.
The applicant’s initial evidence to the Tribunal was that the information in the protection visa was complete and accurate, and that someone else had written it for her. During the hearing the applicant gave evidence that was different to the information in the protection visa application.
The Tribunal confirmed that the applicant had no problems understanding the interpreter. The oral evidence given by the applicant was deliberate, cogent, and given under affirmation. When asked, the applicant admitted the information in the protection visa application was false. For these reasons the Tribunal prefers the evidence provided by the applicant at hearing. The Tribunal finds the information in the protection visa application describing the reasons the applicant left Malaysia and the harm she fears is false and the Tribunal gives no weight to it.
At hearing the applicant did express concern about her ability to find employment as an older person if she returned to Malaysia. The Tribunal has considered whether this may amount to harm and if so, whether it reaches the relevant threshold for protection. The Tribunal gives weight to the applicant’s evidence that she has previously held down a full-time job in the [occupation 2 sector] in Malaysia for 16 years and that she has demonstrated an ability to obtain and hold down a full-time [occupation 1] job in Australia. When asked, the applicant advised that there was nothing that would prohibit her from getting a job in Malaysia.
Country information prepared by the Department of Foreign Affairs and Trade suggests that there is a relatively low unemployment rate and there are labour shortages in many sectors.[1] Given the employment history and clear work capacity of the applicant, the Tribunal does not accept that she would be unable to work if she returned to Malaysia in the reasonably foreseeable future. Having regard to the examples of serious harm in s 5J(5) of the Act, the challenges the applicant would face in finding employment upon return to Malaysia would not be of the severity required to constitute ‘serious harm’. The Tribunal finds that there is no real chance of serious harm as outlined in s 5J(5), nor do the circumstances meet the definition of significant harm in s 36(2A) of the Act.
[1] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024 p9 at 2.10
Does the applicant satisfy the refugee criterion for protection?
The applicant does not satisfy the refugee criterion for protection. There is no real chance of serious harm if the applicant were returned to Malaysia in the reasonably foreseeable future. Her fear on return is an inability to find employment. The Tribunal has considered this at paragraphs 22 and 23 above, and finds the feared harm does not reach the threshold of serious harm in s 5J(5) of the Act.
Does the applicant satisfy the criterion for complementary 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). The Tribunal finds there is no real risk of significant harm to the applicant as the claimed harm does not meet the definition of significant harm in s 36(2A) of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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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