1420540 (Refugee)

[2016] AATA 3070

1420540 (Refugee) [2016] AATA 3070 (12 January 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420540

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Stuart Webb

DATE:12 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 12 January 2016 at 12:27pm

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] June 2014 and the delegate refused to grant the visa [in] November 2014.

3. On 14 December 2015 the Tribunal wrote to the applicant 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 9 January 2016 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it[1]. The applicant’s agent advised the Tribunal that the applicant ‘is unable to provide any evidence or submission in support of her application’. This matter has therefore been determined on the evidence available to the Tribunal.

   [1] AAT Folio 25

4. The applicant was represented in relation to the review by her registered migration agent. The applicant provided a copy of the delegate’s decision to the Tribunal.

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant identified as a [age] year old Malaysians citizen, born in [location], never married and living in [a different location] all her life. She did not identify her religion or ethnic group in her application. She provided a copy of the passport, which included a number of entry and exit stamps for [Country 1] and [Country 2] dated 2011. Her application stated she had visited [Country 1], [countries] and [Country 2], though dates were not provided. The applicant departed Malaysia [in] March 2012 and arrived in Australia [in] March 2012 on a [temporary] visa.

21. The applicant lodged her first protection application [in] January 2014. The applicant was requested to provide personal identifiers. The applicant did not do so. Her visa application was deemed invalid as it did not meet s46(2A) of the Migration Act [in] February 2014[2].

    [2] CLF[number]

22. The applicant lodged a further protection visa application [in] June 2014. She provided her personal identifiers as part of this application.

23. The applicant made the following claims in her written application. Her family runs a small shop, where she worked. An officer called ‘[Mr A]’ asked her to be his lover, otherwise the shop would be closed down and her family would be broken. The applicant said no and the shop was lost. [Mr A] asked the police and gangsters to come to shop frequently. The police said her family sold unqualified products and defrauded the revenue.  She cannot find any job because of him. He knows she is in Australia and said she will suffer the same thing if she returns unless she will be his lover. [Mr A] comes from a powerful family and has relatives working in government and running large organisations. She tried to complain but no one helped her[3].

    [3] CLF[number], Form 866C Qs 43-48, folios 17-20

24. The applicant also provided the following statement with her application.

    My name is [name], I'm come from Malaysia, I like Australia country so much, it's very a lot more wonderful places that you can visit. and they people so kinds and nice. and much more wonderful places that you can enjoy it's beautiful and nature. this is one of the reson that i'm here. and some more that because our country is not stable economic even have a very good job in the office but in the end that you can earn small amount of salary that you can't even effort for all that you need and what for living, and that feeling so teribble and very heavy when you get know that you have many of responsible in your [sibling] and parents. i have to help my Mom and Dad cause they already quite old and sometime not feeling very well ,so now as a big sister i have too help my [siblings] pay they school in university, some more help send some money to Mom and Dad for renovation our house. that all my responsibility. if I'm staying in Malaysia be honestly I can't effort all this but if i wish can stay here longer perharp i can help them all, even I leave a good job in malaysia and come here just have a simple job that would be enough for my [sibling] and parents.

    earn money is really not easy like we imagine and realise, now everything get more and more expensive than before and come a lot more that you need and want, that all make me decide to help my Mom and Dad , the people most I love and care about.

    I wish and hope Australian goverment can gave me any oppurtunity to stay around three or five years until finish effort my [sibling] study than decide to go home. with all my heart i beg Australian Goverment can help me to stay longer. i would be greatfull for that if i can help my [sibling] and parents.

    the last of my word , wish all that i hope will success, Thank you[4].

    [4] CLF[number] Folio 29

25. The applicant was invited to an interview with the Department to discuss her claims but did not attend.

26. The delegate was concerned by the very limited detail of the applicant’s claims, such that they did not believe the claims were credible. The applicant provided no supporting information regarding her claims, such as evidence of her family’s ownership and operation of a business that should have been readily available. The delay in lodging the visa application was also of concern to the delegate, as she waited nearly two years before lodging the application. The delegate considered the claims to be not genuine or credible.

    Findings and reasons

    Country of nationality

27. The applicant claims to be a citizen of Malaysia and provided a copy of her passport to the Department. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of the Refugees Convention and receiving country for the purposes of the complementary protection assessment.

    Third country protection

28. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

29. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

30. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

31. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

32. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

33. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out (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.)

34. The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

35. The applicant was invited to a hearing with the Tribunal and an interview with the Department, but did not attend either. In response to the invitation to the Tribunal hearing, it was submitted by the applicant’s agent that he was instructed that the applicant was unable to provide any evidence or submission in support of her application. No submissions were received by the Tribunal regarding her claims.

36. The Tribunal has significant concerns regarding this, given the very vague, contradictory and limited claims that the applicant had made in her application. The delegate had expressed their concern regarding the limited information regarding the claims that the applicant had made, and had identified materials that the applicant could use to support her claims, however the applicant has not provided such materials or provided any further evidence on her behalf in the 14 months since the Department refused her application. The Tribunal considers that this failure to provide further information causes serious credibility issues for the applicant.

37. The Tribunal notes the significant contradictions in the written claims of the applicant in her application and the statement provided in support of her claims. The written application discusses an ‘officer’ who demanded the applicant become his lover, and on her refusal, caused her and her family to have ongoing difficulties, including closing the family business and that he would make her ‘suffer lots of pain’ if she kept on refusing.

38. In the statement, there is no reference to this officer at all. The applicant states she wants to say in Australia for three to five years to provide financial support for her family, in particular her [sibling]’s education at university and a renovation to her family home. The applicant states that the economy in Malaysia is not stable, and that ‘even I leave a good job in malaysia and come here just have a simple job that would be enough for my [sibling] and parents’. This statement contradicts the applicant’s claims as found in her application that the failure to provide sexual services to an officer caused the family business to be targeted by police and gangsters and eventually close. As stated, the applicant said she left a good job in Malaysia to come to Australia to make money, on the premise that a simple job in Australia would provide better financial assistance to her family. There is no mention whatsoever in the supporting statement of any difficulties with any particular officer, or any other person, for the applicant in Malaysia. The supporting statement discusses financial reasons why the applicant would like to stay in Australia for a period of time, then return to Malaysia. The Tribunal notes that the applicant has had the opportunity to stay in Australia for almost four years since she arrived, within the time she has asked to remain in Australia.

39. The applicant has not attended the hearing with the Tribunal to discuss the inconsistencies in her claims. The Tribunal would have asked the applicant why her claims are so different, from her statement that she was leaving a good job in Malaysia to come to Australia, with the claim that police and gangster intimidation caused her family business to close. This is a significant contradiction, her employment situation appears highly contradicted in these two statements. The applicant has failed to explain which of these statements is the correct information. The statement also suggests that the applicant was working in a different position other than in a family business, which is significant as the applicant claims her family business was closed because of her refusal to become [Mr A]’s lover and that she could not get any other job because of him.

1. The Tribunal would have asked the applicant about the supposed failure of the family business. The delegate’s decision details documents that would have been readily available for the applicant regarding the family business, including evidence of ownership and operations. The applicant has not provided evidence of this to the Tribunal, going further and stating that she was unable to provide any ‘provide any evidence or submission in support of her application’. Given the 14 months that have elapsed since the applicant was notified of the delegate’s decision, the failure to provide supporting documentation regarding family business is of significant concern. The Tribunal considers that it is reasonable to expect that such documentation would be available, if it existed, and be provided to support the applicant in her claims. She has not done so, and said she could not do so. Given the applicant has claimed she was in a ‘good job’ when she left Malaysia, the Tribunal has significant doubts as to the family operating a business at all, let alone it failing because of repudiated sexual demands of any person. The Tribunal has significant concerns regarding the operation of a family business by the applicant and her family in Malaysia, and the failure of the applicant not to attend the hearing has not allayed those concerns. The Tribunal does not accept that the applicant was part of a family business in Malaysia, or that it was closed because of her. The Tribunal considers that the applicant was employed elsewhere in a ‘good job’ that she left to come to Australia.

2. The Tribunal would have further asked why the applicant made no mention whatsoever of any personal difficulties, aside from economic difficulties, in her supporting statement. The Tribunal would have asked why the applicant failed to make any mention of any intimidation by a man called [Mr A] in that statement, given it was the substantive element of the claim made in her application. The failure of the applicant to make any reference to the difficulties she stated she had in the written application is of serious concern to the Tribunal, and causes it to have very serious doubts as to the genuineness of the applicant’s claim that she had difficulties with a man called [Mr A], and because of him, problems with police and gangsters.

3. There is a further contradiction in the application and supporting statement. In the claims in the application, the applicant states that [Mr A] knows the applicant is in Australia, and that he has told her family that if she goes home, ‘she will suffer the same thing unless she will be his lover’. This contrasts directly with the applicants supporting statement that requests ‘any oppurtunity to stay around three or five years until finish effort my [sibling] study than decide to go home’. This contradiction in fearing to return home at all, then stating that she wants some time for her [siblings] to finish their studies then she will return to Malaysia. The applicant has not attended a hearing to discuss this contradiction, and the Tribunal has significant concerns regarding that the applicant has been threatened if she returns home, given the apparent willingness to do so as stated by the applicant.

4. The applicant has provided very little information about this person called [Mr A], his position and responsibilities, how he came to know the applicant, how he made his demands and how he caused there to be difficulties for the family. The applicant has not provided any more detail regarding his influence with police or gangsters and how he made them cause difficulties for the applicant and her family. The applicant has said his family is influential in government and in business, but again, provided no more information about this or why it is relevant to her circumstances.

5. The applicant has claimed that she had tried to make a complaint but no one would help her. Again, no further information as to who she tried to complain to or why it got nowhere has been provided. The Tribunal has significant concerns regarding this, given that she was purportedly complaining about the unwanted sexual advances of an officer, and why this was given no attention. The limited information is of concern to the Tribunal.

6. The Tribunal would have asked the applicant about the delay in the applicant making her application for protection. She arrived in Australia in March 2012 on a 3 month visa. She did not depart at the expiration of that visa, and remained unlawfully in Australia until her first attempt to lodge a protection visa in January 2014. The Tribunal would have asked the applicant about this delay, given her claim she left Malaysia to avoid these difficulties and then did not seek asylum for such a long period of time. As stated above, the Tribunal it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution.

7. The Tribunal would have also asked the applicant about her travels to other countries in the period leading up to coming to Australia, with the applicant getting visa stamps for [Country 2] and [Country 1] in the later part of 2011. The Tribunal would have asked the applicant about these travels and her ability to afford this, given her claim that her family was forced to close its business.

8. The applicant was aware that her credibility and genuineness of her claims were at issue, given the decision of the delegate. Further, there are express inconsistencies in the materials that she has provided in support of her claims that have not been explained by the applicant. The applicant was advised in the letter inviting her to a hearing with the Tribunal that the information before the Tribunal had been considered but the Tribunal could not make a favourable decision on this information alone. Despite this the applicant declined the opportunity to provide further evidence in support of her claims, instructing her agent that she had no evidence or submission in support of her application.

9. The Tribunal does not accept that the applicant has been the subject of sexual interest by a person called [Mr A], that he ever demanded that she become his lover or that there was any recrimination arising out of any refusal made to [Mr A]. The Tribunal does not accept that the applicant was threatened because of any interest from a man called [Mr A] in her. The Tribunal does not accept that the applicant ever sought to make a complaint regarding [Mr A]. The Tribunal does not accept that a family business was affected by police or gangsters. The Tribunal does not accept that the applicant caused there to be any difficulties for her family due to ay refusal to enter into any relationship. The Tribunal finds that the applicant’s claims regarding a person called [Mr A] and subsequent difficulties for her and her family are not genuine.

10. The Tribunal finds that the applicant does not have a real chance of serious harm for this reason, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

11. Further, given the consideration of the evidence above, the Tribunal finds that the applicant does not have a real risk of significant harm for this reason.

12. The Tribunal has considered the claim as made by the applicant that the economy in Malaysia is not stable, and that she has come to Australia to provide financial support for her family. The applicant states that she is Australia to support her elderly parents, her [siblings] who are doing university education and a proposed renovation to the family home. She states she left a good job in Malaysia to come to Australia, though she was not happy with the salary.

13. The applicant has not provided any further information regarding the instability or otherwise of the Malaysian economy, or why her salary was unable to support her and those she considered her dependents. The applicant has not explained how she would not be able to subsist in Malaysia, given the statement that she has made, nor how her situation constitutes serious or significant harm, as defined. The applicant did not attend to explain this issue further. The Tribunal notes that the applicant has indicated an intention to return to Malaysia after three to five years, which would demonstrate a lack of concern with the financial situation that she would return to. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.

14. For the reasons given above, individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

15. The Tribunal also considered 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 a receiving country, there is a real risk that the applicant will suffer significant harm.

16. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from [Mr A], police or gangsters if she returns to his home in Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, 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 definition. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.

17. 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).

18. 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

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

    Stuart Webb
    Member