1412962 (Refugee)

[2015] AATA 3764

1412962 (Refugee) [2015] AATA 3764 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412962

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:24 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 24 November 2015 at 9:46am

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 dependant.

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 Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] July 2014. The applicant provided a copy of the delegate’s decision with her application for review.

3. The applicant was represented in relation to the review by her registered migration agent.

4. On 30 October 2015 the Tribunal wrote to the applicant, via her representative, advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 23 November 2015. On 2 November 2015 the applicant advised the Tribunal that she would attend the hearing.

5. On 10 November 2015 the applicant called the Tribunal requesting the hearing be re-scheduled or postponed as she is working and will not be able to make the hearing on the day. She was asked to send the request in writing and advised that she would send an e-mail to make the request in writing. No written request was received. On 19 November an email was sent to the applicant’s representative, cc:ed to the email address provided for the applicant, informing them that the Tribunal member had considered the request but decided on the information before it that the hearing would not be postponed on the basis that the applicant was working, and indicating that the hearing would proceed as scheduled. No response was received and the applicant did not attend the hearing or contact the Tribunal to explain the failure to attend. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. 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 a protection 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 the applicant 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

11. The issue in this case is whether the applicant’s claims are made out. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims

12. The applicant’s claims are contained within her application for protection. She claims that she left Malaysia to avoid the harm by her boyfriend, his family and their associates. She states that she has been threatened with harm if she does not join Islam. She claims that she is in fear of being unable to prevent harm by her boyfriend and his associates and in fear of the safety of her parents and herself. She fears she will be continuously harassed. She states that she fears her boyfriend, his family, and their associates. She claims that she thinks this will happen because she has a boyfriend whose family worship Islam. They have attempted to convince her to participate or engage in Islamic worship and activities. As she believed in Buddhism and did not wish to worship Islam, her boyfriend and his family or associates forced her to engage in the activities. She decided to break up with him and as a result had been threatened. She has approached the police on several occasions, but they did nothing to protect her from the continuing harassment, intimidation and stalking.

13. The decision record indicates that the applicant did not arrange an interview with the delegate.

14. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant herself/himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

15. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

16. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

17. I accept that the applicant is a national of Malaysia, on the basis of the biographical and passport information provided in the protection application, and the evidence on the Departmental file of her identity. I have assessed her claims against Malaysia as her country of nationality and her receiving country.

18. The applicant has claimed protection in Australia so that she does not have to return to Malaysia.

19. The applicant claims that her boyfriend’s family worship Islam and attempted to convince her to participate or engage in Islamic worship and activities. The applicant has only provided vague and general claims about her boyfriend, his family and associates, and their attempts to convince her to participate or engage in Islamic worship and activities. She claims that because of her belief in Buddhism she did not wish to worship Islam, and her boyfriend and his associates forced her to engage in the activities. She decided to break up with him and as a result had been threatened. She has only provided generalised and vague claims about her beliefs and wish not to worship Islam, how her boyfriend and his associates forced her to engage in such activities, when she decided to break up with him and the threats she claims to have received.

20. The applicant claims that she left Malaysia to avoid the harm by her boyfriend, his family and their associates. She states that she has been threatened with harm if she does not join Islam. She claims that she is in fear of being unable to prevent harm by her boyfriend and his associates and in fear of the safety of her parents and herself. She fears she will be continuously harassed. She states that she fears her boyfriend, his family, and their associates. The applicant has only provided generalised, brief and unspecific claims about these things, and has not provided details about the harm and harassment she fears, the threats she claims to have received, and why she fears for the safety of her parents and herself.

21. The applicant claims she has approached the police on several occasions, but they did nothing to protect her from the continuing harassment, intimidation and stalking. She has not provided more than generalised claims about why the authorities will not or cannot protect her, and has not provided details of when she approached the police, or about the claims harassment, intimidation and stalking.

22. The applicant has provided only general claims. In these circumstances, and on the limited evidence before the Tribunal, the Tribunal does not accept any of the claims made by the applicant. There is no evidence that the applicant would face harm on return for any reason to do with her religion or for any other Convention reason. For this reason, the Tribunal is not satisfied, on the evidence before it, that the applicant faces a real chance of serious harm amounting to persecution, now or in the reasonably foreseeable future for any reason if she returns to Malaysia. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

23. The Tribunal has considered the applicant’s claims against the provisions of s.36(2)(aa). The Tribunal finds, on the basis of the biographical and passport information provided in the protection application, and the evidence on the Departmental file of her identity, that Malaysia is the applicant’s country of nationality and therefore her receiving country. On the limited evidence before it the Tribunal has not accepted the applicant’s claims. The Tribunal is not satisfied, on the limited evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

24. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Convention reason. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

    Conclusion

25. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

26. 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).

27. 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

28. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Sean Baker
    Member