1904939 (Refugee) [2024] AATA 1401 (24 April 2024)

Last Updated: 5 June 2024

1904939 (Refugee) [2024] AATA 1401 (24 April 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1904939

COUNTRY OF REFERENCE: Malaysia

MEMBER: Nicole Burns

DATE: 24 April 2024

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 April 2024 at 5:07pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – threats from money lender – race – Chinese Malaysian – plans to suicide – physical assault – employment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of Malaysia, last came to Australia [in] October 2015 and applied for the visa on 29 September 2018.
3. By letter dated 21 March 2024 the Tribunal invited the applicant to attend a hearing scheduled for 11 April 2024. In her response to the hearing invitation form received by the Tribunal on 10 April 2024, the applicant indicated that she would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.
4. The Tribunal has proceeded to make a decision on this basis, without taking further steps to allow the applicant to appear before it.
5. The issue in this case is whether the applicant is owed protection either 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.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

7. 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.
8. 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.
9. 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).
10. 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.
11. 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

12. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

13. In her protection visa application the applicant set out the reasons why she left Malaysia and fears upon return there, summarised as follows:
    • In Malaysia she had a lot of debt and was stressed and planning to suicide.
    • She paid an agent to give her a better future in Australia who promised to provide her a visa and accommodation however was unable to contact the agent after she arrived.
    • She experienced harm in Malaysia from all the people that she owes money who always pushed her to pay the money back.
    • Her life will become worse if she has to return to Malaysia because she will need to do more than two jobs to survive and repay all her debt.
14. On 1 March 2019 the delegate refused to grant the applicant a protection visa, not satisfied she was owed protection as a refugee or under the complementary protection provisions. The applicant was not interviewed by the delegate.
15. On review the applicant did not provide any submissions and declined the Tribunal’s hearing invitation, as noted.
16. The Tribunal accepts the applicant is [an age]-year-old woman from Malaysia who last came to Australia [in] October 2015.
17. The applicant claims she left Malaysia due to outstanding debts. She claims this caused her stress and that people she owed money to harmed her and pushed her to repay her debts. However her claims to the Department are very general and lacking details and context. For example there is limited information about the alleged debts, such as how much money she borrowed, the terms and conditions of the loan, who she borrowed money from, or why she needed to borrow money in the first place. Nor is there any information about whether she has spent the money, or how much money she has outstanding (if any). The applicant also failed to provide any details about the harm she alleged experienced as a result of outstanding debts, for example what kind of harm, whether it was serious, and who perpetrated the alleged harm.
18. As noted the applicant declined the Tribunal’s hearing invitation where such matters would have been canvassed.
19. There is insufficient evidence before the Tribunal to establish the relevant facts of the applicant’s case.
20. For these reasons the Tribunal does not accept the applicant borrowed money from anyone in Malaysia as claimed. It does not accept she was harmed or pushed by people there whom she owed money to, or that she was stressed and planned to suicide as a result as claimed. It follows that the Tribunal is not satisfied the applicant faces a real chance of serious harm from anyone because she borrowed money in the past and/or due to outstanding debts on return to Malaysia.
21. The Tribunal is also not satisfied the applicant would have to do more than two jobs on return to Malaysia to survive and repay all her debt given its finding that she does not have any debt.
22. The applicant claimed in her visa application form that although she paid an agent for a visa and accommodation in Australia, she was unable to contact them after she arrived in Australia. She has provided no further information or details about the agent, such as their r name, how much money she paid them, and how that may affect her on return to Malaysia. Based on the limited information before it in this respect the Tribunal does not accept the applicant paid an agent for accommodation and a visa in Australia who then did not deliver on their promises. It follows that it does not accept she faces a real chance of serious harm from the agent or their associates or anyone else on return to Malaysia as a result.
23. The Tribunal notes in her application form the applicant indicates she is Chinese Malaysian. The Tribunal accepts that is the case. She has not indicated that she experienced any problems including discrimination in the past in Malaysia due to her ethnicity or concerns on return.
24. The Tribunal has considered if the applicant would face a real chance of serious harm from anyone on return to Malaysia on the basis of her Chinese Malaysian ethnicity. In doing so it has considered independent country information about the situation for Chinese Malaysians.
25. DFAT in their latest country information report on Malaysia advise that whilst there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians, they are affected by the constitutional preference for ethnic Malays and indigenous (collectively known as Bumiputera). DFAT assess that Chinese Malaysians (who make up around 20 per cent of the population) experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.^[1]
26. However, there is nothing in the DFAT report or otherwise before the Tribunal to indicate that Chinese Malaysians face discrimination that amounts to persecution (or significant harm) in Malaysia, or that Chinese Malaysians are targets for societal violence by Malays (or others).
27. Given these considerations, the Tribunal finds the applicant does not face a real chance of serious harm on the basis of her Chinese Malaysian ethnicity on return to Malaysia.
28. For these reasons, the Tribunal is not satisfied the applicant has a well-founded fear of persecution as required by s.5J of the Act for any of the grounds advanced or that arise on the material before it. Therefore the Tribunal finds the applicant is not a refugee within the meaning of s.5H.

Complementary protection

29. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm. In this case, the Tribunal accepts that the applicant is a national of Malaysia and that Malaysia is her ‘receiving country’ for the purposes of s.5(1).
30. For the reasons set out above, the Tribunal has found there is not a real chance the applicant will suffer serious harm from anyone due to outstanding debts, or based on her Chinese Malaysian ethnicity, or due to being defrauded by an agent, if she returns to Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.^[2] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for these reasons.
31. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, if she is removed from Australia and returned to Malaysia. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

CONCLUSION

32. 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).
33. 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).
34. 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

35. The Tribunal affirms the decision not to grant the applicant a protection visa.

Nicole Burns
Member

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

(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.

...

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.

...

36 Protection visas – criteria provided for by this Act

...

(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.

...

---

^[1] DFAT Country Information Report: Malaysia, 29 June 2021 at 3.8 and 3.12
^[2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].