2301502 (Refugee)
[2025] ARTA 1097
•31 January 2025
2301502 (REFUGEE) [2025] ARTA 1097 (31 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2301502
Tribunal:General Member Waring
Date:31 January 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from creditors – borrowed from money lenders, family and friends for business – applicant and family attacked after relocating – stress and depression – application completed by another person without applicant’s knowledge of contents – no debts and plans to return – age and health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), Schedule 2
CASE
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 19 January 2023 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 13 November 2022. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 6 February 2023 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT).
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), 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.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it will be continued in the Tribunal in a manner that is efficient and fair. This decision and statement of reasons is made by the Tribunal.
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
The applicant appeared before the Tribunal on 8 January 2025 to give evidence and present arguments.
BACKGROUND
The applicant, a [Age]-year-old man was born in [Town], Malaysia. He lived in Ampang, Malaysia from [Birth] to August 2022.
The applicant arrived in Australia [in] August 2022 on a visitor visa.
He applied for the protection visa on 13 November 2022.
Evidence before the Department and the Tribunal
The evidence taken into account by the Department included:
· the applicant’s protection visa application.
· supporting documents including personal identifiers sighted by the Department as part of an identification test.
The applicant was not interviewed by the Department in relation to the application.
In addition to the above documents, a movement record of the applicant’s entry into Australia is also before the Tribunal.
The totality of evidence before the Tribunal is discussed and examined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The applicant] provided a copy of the biodata page of his Malaysian passport to the Department as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before me to the contrary. I find that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.
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.
PROTECTION VISA CLAIMS
In his protection visa application, the applicant’s claims for protection are set out (and summarised) as follows:
· He ran a business in Malaysia which encountered financial difficulties during the COVID pandemic.
· He borrowed large amounts of working capital from lenders, family and friends in Malaysia which he cannot repay. As a result, the lenders want to kill him, his wife and his children because of the large amount of debts outstanding.
· He tried moving to Kuala Lumpur to work but was followed there by the lenders who attacked him and his family. His wife and children were scared by the lenders.
· He is too old to get a suitable job in Malaysia or Australia so he cannot settle the debts to avoid threats and retaliation by the lenders.
· As he is unable to repay the debts, his life and the lives of his family are at risk if he returns to Malaysia.
· He has suffered with stress and depression as a result of the threats made by the lenders, his family crying everyday and his inability to settle the problem or handle his family.
· His country authority would not take action to assist him or his family to get justice. Even if he and his family were killed by the lenders, the authorities would act improperly and just close the case.
· Australia is the country that can protect him and allow him to obtain work.
REASONS AND FINDINGS
The issues in this case are whether there is a real chance that, if [the applicant] returns to Malaysia, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
In determining these issues, the Tribunal has considered the statements made in the protection visa application (of which the applicant had no knowledge) and the evidence presented by [the applicant] at hearing.
For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed.
Assessment of the protection visa claims
At the hearing on 8 January 2025 [the applicant] was assisted by an interpreter in the Mandarin language. He stated that he did not prepare the protection visa application himself. He did not check the contents of the application or have it read to him in the Mandarin language. He had been introduced to a person who handled the matter for him. That person charged him an administration fee but did not explain the matter or the process to him or tell him the content of the application.
The evidence given by the applicant at hearing differed significantly from statements in the protection visa application on aspects which are critical to this review. Of most significance are [the applicant]’s statements at hearing that he does not have (or had) any debts and has firm plans to return to Malaysia in 2026. [The applicant] told the Tribunal that the loan-related events cited in the protection visa application are incorrect.
[The applicant] stated that did not know (or agree with) the claims made on his behalf in the protection visa application. Except as detailed below, [the applicant] did not rely on the protection visa claims cited above at hearing. It appeared to the Tribunal that [the applicant] abandoned most of the claims made in the protection application during the hearing.
The applicant told the Tribunal that he did not operate a business in Malaysia or relocate to Kuala Lumpur. He was employed as [an occupation] for approximately ten years until 2019 and did not have a job in Malaysia thereafter.
[The applicant] stated that his family includes his wife, two daughters, their partners and children. His wife has never worked and her living arrangement includes room and board with one of their daughters. She also receives a small allowance in return for caring for the grandchildren. [The applicant]’s children are self-sufficient financially.
[The applicant] stated that his wife does not own a car or have any debts. He and his wife share the unencumbered ownership of the house where [the applicant] lived up until he came to Australia in August 2022. The house has three rooms and its dimensions are 1,200 square metres. Based on the size of the property [the applicant] stated that it should be valued at 300,000 Malaysian ringgit however it is located in a landslide area. Ten years ago, the apartment next door collapsed causing more than 50 deaths. Due to its location [the applicant] and his wife have been unable to sell the house and it remains vacant.
[The applicant] stated that he does not own a car or have any debts. He has had different types of jobs in Australia including [job tasks] work. At the hearing, the Tribunal found [the applicant] to be genuine and credible and accepts his evidence that he currently works about 2 or 3 days each week, that his only source of income in Australia has been from employment and that his earnings are sufficient to cover his living expenses.
[The applicant] explained that his vision problems led to the termination of his employment in or about 2019. He received a lump sum redundancy which he used to fund his living expenses. When this financial reserve was depleted, he received funds from his brother which he considers to have been a gift rather than a loan.
As observed above, [the applicant] stated that he does not have any debts. This is accepted by the Tribunal.
Based on the applicant’s evidence at hearing, the Tribunal does not accept the following claims made in the protection visa application (which were considered by the Tribunal to have been abandoned at hearing):
· [The applicant] ran a business in Malaysia which encountered financial difficulties during the COVID pandemic.
· [The applicant] borrowed large amounts of working capital from lenders, family and friends in Malaysia which he cannot repay.
· Lenders in Malaysia want to kill [the applicant], his wife and his children because of large debts outstanding.
· [The applicant] moved to Kuala Lumpur to work.
· Lenders in Malaysia attacked [the applicant] and his family.
· [The applicant]’s wife and children were scared by lenders in Malaysia.
· [The applicant] came to Australia because he is unable to settle outstanding debts and/or to avoid threats and retaliation by the lenders.
· [The applicant]’s life and the lives of his family are at risk if he returns to Malaysia.
· [The applicant] suffered with stress and depression as a result of threats made by lenders, his inability to settle the problem and his resulting inability to handle his family who were crying every day.
Assessment of claims made at hearing
At hearing [the applicant] did not assert that he suffered harm in Malaysia and the Tribunal accepts his evidence in this regard.
At hearing [the applicant] did not assert that he fears debt-related (or any) harm and/or threats if returned to Malaysia and the Tribunal accepts his evidence in this regard.
[The applicant] gave evidence that he was unable to find work in Malaysia between 2019 and 2022 in part because of his age and the eyesight condition affecting his vision. The Tribunal considers that [the applicant] did not abandon the claim made in the protection visa (and elaborated upon at hearing) that in and around 2022 he was in need of financial resources, could not secure employment in Malaysia, and believed Australia to be the country that can protect him and allow him to obtain work.
According to [the applicant]’s accepted evidence (that he currently works about 2 or 3 days each week) the Tribunal does not find that he is unable to work. There is no probative evidence before the Tribunal regarding [the applicant]’s unsuccessful job search in Malaysia or his financial resources in and around 2022. The Tribunal does not find that [the applicant] was unable to work in Malaysia.
[The applicant] stated, and the Tribunal accepts, that due to his poor health, it is his intention to return to Malaysia in 2026 to live with his daughter. [The applicant] wants to avoid trouble for his daughter If he were to pass away in Australia and has already informed his daughter of his plan.
The Refugee and Complementary Protection criteria
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on [the applicant]’s accepted evidence, the Tribunal finds that he does not meet the subjective requirement in s 5J(1)(a) or the objective standard in s 5J(1)(b).
The Tribunal concludes that [the applicant] does not have a well-founded fear of persecution as defined in s 5J of the Act and is not a refugee within the meaning of s 5H(1) of the Act. It follows that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
The Tribunal now turns to consider the alternative protection criterion in s 36(2)(aa) of the Act.
Having regard to the findings and observations above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Malaysia, there is a real risk that the applicant will suffer significant harm for any established reason.
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).
For the reasons given above, the Tribunal concludes that the applicant is not a person in respect of whom Australia has protection obligations.
DECISION
ATTACHMENT - Extract from Migration Act 1958The Tribunal affirms the decision not to grant the applicant a protection visa
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.
…
0
1
0