Minister for Home Affairs
[2024] ARTA 955
•19 December 2024
2001492 (REFUGEE) [2024] ARTA 955 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs
Tribunal Number: 2001492
Tribunal:General Member J Meyer
Date Of Oral Decision: 5 December 2024
Time Of Oral Decision: 11.29am
Date Of Written Record: 19 December 2024
Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 19 December 2024 at 12:53pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan sharks – threats, police inaction, depression and suicide attempt – intention to work in Australia and application prepared by another person without applicant’s knowledge of contents – age, economic conditions and employment opportunities – country information – no real chance of significant harm – Australian citizen partner and intention to apply for partner visa – straightforward and honest evidence – decision under review affirmed
LEGISATION
Migration Act 1958 (Cth), s 36(2)(a), (aa)
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
THE CRITERIA FOR A PROTECTION VISA ARE SET OUT IN SECTION 36 OF THE ACT AND SCHEDULE 2 OF THE REGULATIONS: THE APPLICANT IS EITHER A PERSON IN RESPECT OF WHOM AUSTRALIA HAS PROTECTION OBLIGATIONS UNDER THE REFUGEE CRITERION OR ON COMPLEMENTARY PROTECTION GROUNDS. WHERE RELEVANT, THE TRIBUNAL HAS TAKEN INTO ACCOUNT POLICY GUIDELINES PREPARED BY THE DEPARTMENT OF HOME AFFAIRS AND COUNTRY INFORMATION ASSESSMENTS PREPARED BY THE DEPARTMENT OF FOREIGN AFFAIRS AND TRADE, IN ACCORDANCE WITH THE MINISTERIAL DIRECTION.
Where there is conflicting evidence, questions of credit may have to be resolved. The Tribunal is entitled to attribute greater weight to one piece of evidence against another, and act on its opinion that one version of the facts is more probable than another. In determining whether there is a real chance, or real risk, the degree of probability that similar events have or have not occurred in the past is relevant, in determining the chance that they will occur in the future.
There is no rule that the Tribunal cannot reject an applicant’s testimony on credibility. There is no rule that the decision-maker must form a positive state of disbelief before making an adverse credibility assessment.
Findings and reasons: The applicant claims to be a citizen of Malaysia, and has provided a copy of her passport to the department and Tribunal. I find the applicant is a citizen of Malaysia, which is also her receiving country for the purposes of the refugee and complementary protection assessment. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country.
The applicant claims, in her written application forms to the department, the following: she lives in Malaysia, and she owes money to loan sharks; the loan sharks were threatening to kill her; the applicant did not relocate within Malaysia, as the loan sharks would find her; the applicant tried to make a police report, but it was not helpful, because there was no concern from the police; if the applicant returns to Malaysia, she may be killed by the loan sharks; and the huge amount of debt put her into depression, and she tried to commit suicide.
The Tribunal has also read a statement made by the applicant, which says that she wishes to apply, with her partner, for a partner visa; her partner, [Mr A], is an Australian citizen; they have been together for about four years, and they reside together; due to financial issues at the moment, they have had to delay making such a partner application; and that also, her partner is separated with his ex-wife for around about five years; and all assets have been finalised. Just the matter of paperwork and the fee for finalisation of the divorce is needed. They are hoping that there will be more time given because of the issues in the statement.
The Tribunal has interviewed the applicant, and found that she came to Australia in 2019. She came because she thought she would see friends and travel around for a month. She saw friends in Australia who were earning money. She asked them for advice on how she, too, could work in Australia. They advised her to apply for a visa. She said she knew nothing about the visa that was applied for, and it was all organised by a friend of a friend, who she had not met.
She comes from a smaller town, in Kedah state. She has a father [and siblings] remaining in Malaysia. She has previously been a manager in a [workplace]. She has tried to juggle a morning job and a night job. She has completed Form 2 in secondary school. She has not been married before. She has a child, who was cared for by a family member as a baby, who is now [Age] (her [child]), who she is still in contact with. She says she has a partner here in Australia, and she is planning a visa for that partnership. The couple, at the moment, have a money issue when it comes to applying for the visa. Her partner pays the mortgage on the house, and she pays certain bills. The applicant told me that she has a job in [job task], and her partner owns the home. They have lived together for four years or so. Her religion is Muslim, and she has been of Muslim designation throughout her life.
I discussed the basic criteria of this visa, and that it is for matters of persecution and complementary protection. I asked the applicant what sorts of risks or problems she would face if she had to return to Malaysia now or in the reasonably foreseeable future. The applicant replied that there should not be any issues.
10.She noted, though, that at her age, it was hard to get work. I calculate her age as being [Age]. She discussed the economy in Malaysia, and said that while there was plenty of work, she said, in a factory, for example, they take workers according to age, and they seek workers who are less than [Age] years old. The Tribunal observed that her age did not appear to be old to the Tribunal, and queried whether she could do other types of work. She said, ‘No matter, they pick you by age,’ and the reason for the employers’ attitudes was to get people with fewer health issues, and to pick people with fewer family responsibilities. She was not entirely confident that she would be financially viable in Malaysia.
11.In relation to the question that I mentioned earlier about loan sharks, she said she did not have any issues with them, that she did not have a debt, and she did not have depression or a suicide attempt, and there was no police report, and, to repeat, no depression or loan sharks. She said that she had never seen a copy of the claims in the application form. She never met the person that filled out the form.
12.She repeated that her partner is completing his divorce procedures, and assets have already been divided. The applicant’s partner, [Mr A], provided evidence that the parties have been together for four years, and living together for some two and a half years. He said that his partner has always worked and been responsible, and she was not someone who engaged in lying, and was of good character.
13.The Tribunal discussed the most recent DFAT country information report on Malaysia, of June 24. The relevant passages are 2.7 to 2.10. In summary, Malaysia is medium income economy. They have real GDP growth of 8.7 per cent in 2022, and it has a developed service sector that contributes to half of the economic growth. It has had a significant reduction in poverty in recent decades. The poorest 40 per cent of the population have the greatest issues, and receive the larger amount of government assistance. Poverty rates are higher in rural areas. The COVID pandemic had a major impact on Malaysia: poverty rates rose, as did cost of living. However, the unemployment rate in April 23 was 3.4 per cent, and there has been economic recovery. There are labour shortages in most sectors, and the country is highly reliant on migrant labour.
14.The visa applicant says that younger workers were wanted, and they were often the migrant workers. She has had physiotherapy necessary for back and similar issues. It affects her work in [job task]. She estimated that while working five days a week, she has needed to have five to six sick days in the last half-year.
15.The Tribunal has considered any issues arising from the economy and job market in Malaysia for her, and while the situation might be challenging, it concludes that it is not so challenging as to amount to persecution or a real chance of significant harm. I note that she did not submit that she would have problems or well-founded fears of returning to Malaysia in her earlier evidence. And while the economic and job market situation might be challenging, they do not amount to a real chance, or real risk.
16.I have considered the claims of the applicant carefully, and I find that she has abandoned any claims written for her about loan sharks, police, depression, or suicide. And I find that, taking her claims at the highest, her chances of real harm or real risk are minimal in Malaysia, because of the economy and labour market. Having examined her written and oral evidence, I find there is no other prospect of harm. And so I find that there is no grounds for finding a well-founded fear of persecution or a real chance of significant harm for any reason.
17.The Tribunal finds the evidence of the parties to be honest and straightforward. She was not trying to embellish their case, or mislead the Tribunal and they presented as a genuine de facto couple. While making no finding about whether they are entitled to a partner visa, I do not have any concerns about the genuineness of their relationship, whether they make a partner application, however, is a matter for them.
18.For the reasons above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). Having concluded that the applicant does not meet the refugee criteria, the Tribunal considered the alternative, complementary protection criteria. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa). There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as someone who meets either of those criteria. Therefore, the applicant does not satisfy the criteria in section 36(2).
DECISION
19.The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 5 December 2024
Representative for the Applicant: Nil
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