1420894 (Refugee)

[2015] AATA 3765

1420894 (Refugee) [2015] AATA 3765 (3 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420894

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rachel Westaway

DATE:3 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 03 December 2015 at 5:56pm

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 [in] November 2014 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] July 2014. The delegate refused to grant the visa on the basis that the information provided was limited and lacked detail and the delegate found the applicant’s claims lacked credibility.

3. The applicant was invited to a hearing on Friday 27 November 2015 and did not attend the hearing. The applicant did not respond to the hearing invitation and did not provide submissions to the Tribunal to support their review. The review applicant was advised that if she could not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. No response was received. The review applicant was sent all correspondence through their nominated email address. 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.

   CRITERIA FOR A PROTECTION VISA

4. 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, 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.

5. 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.

6. 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 themself 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).

7. 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.  

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant 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.

   Nationality

10. The Tribunal finds that the applicant is a national of Malaysia. The Tribunal has had regard to the applicant’s passport on the Department file. The applicant has made no claims to be a national of any other country. The Tribunal accepts that her claims should be assessed against Malaysia for the purposes of the Convention in s.36(2((aa) of the Act for the purposes of the complementary protection obligations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. The applicant stated in her protection visa application that she is a Malaysian born Chinese Buddhist. She is a single woman and has previously visited Australia on two separate occasions on a visitor visa. The applicant most recently arrived in Australia [in] January 2012 on a visitor visa. She remained in Australia unlawfully from [date] January 2013 until [date] June 2014 when she applied for a protection visa, the subject of this review.

13. The applicant did not appear before the Tribunal to elaborate upon her claims. The applicant did not respond to the scheduled hearing invitation and did not provide any explanation for her non-attendance or request an adjournment or a postponement. The applicant has not engaged in the Tribunal process nor has she provided any submissions other than the limited information on the Department file.

14. The applicant has made limited as well as unsubstantiated claims to fearing her return to Malaysia. The applicant states that she was persuaded to convert to Islam in 2011 and she decided she did not want to remain a Muslim. She said that she has lost her freedom and if she returns she will be put in jail, harassed, harmed and sued by the government. The applicant stated that she has had to change her name, register with the government, follow the instruction of religious behaviour such as praying 2-3 times a day. She stated that her parents were also required to join. She claims that Muslim groups have come to her home and taken her to a Muslim temple and spoken to her boss. She claims to be fired from her job. She believes Muslim groups and police will harm her. The applicant has not provided any corroborating evidence, including any oral testimony, to support her claims.

15. The Tribunal has a number of issues upon which it requires further detailed evidence, such as why the applicant and her parents were encouraged to convert to Islam and by whom. Also, the Tribunal would like to test the applicant’s knowledge of the process in which one converts to Islam so as to ascertain the credibility of her claims. The Tribunal would like to discuss the process in which the applicant changed her name.

16. Had the applicant attended the scheduled hearing, the Tribunal would have asked whether the applicant could receive the effective protection of the Malaysian authorities to protect her or whether it was reasonable, in the sense it was practicable, to relocate to another part of Malaysia.

    COUNTRY INFORMATION

17. The Tribunal has given consideration to the following country information from the Department of Immigration and Border Protection dated 30 September 2015. Malaysia’s ethnic demographic consists of 67.4% Malay, 24.6% ethnic Chinese, 7.3% ethnic Indian and 0.7% other. The constitution forbids discrimination against citizens on the basis of gender, race, and religion.

18. DFATS reports state in May 2014 that the Malaysian Government would not tolerate demands or rights to apostasy by Muslims and generally the only conversions were for non-ethnic Malays who had previously converted to Islam for marriage and the marriage had dissolved.

19. The Royal Malaysian Police (RMP) is considered a professional and effective police force. As evidence of their approach to ensure non-discriminatory behaviour, in 2014 the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP.

    FINDINGS AND REASONS

20. The Tribunal is aware of the importance of adopting a reasonable approach and the decision maker is not required to make the applicant's case for him or her. Nor is Tribunal required to accept uncritically any and all the allegations made by an applicant. Had the applicant attended a hearing, the Tribunal would have explored his relevant claims with him and sought further information from him on a range of details relevant to his claims.

21. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' for the reason's claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for that the applicant to satisfy the Tribunal that all the statutory elements are made out. 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 himself or herself.

22. The Tribunal does not accept that the applicant was persuaded to convert to Islam in 2011 and finds that the applicant’s claims lack credibility. Had the Tribunal had the opportunity to discuss the applicant’s experiences and reasons for converting to Islam, it may have provided the Tribunal with a greater understanding of the applicant’s situation and supported her claims.

23. In addition to her unsubstantiated and limited claims and having regard to country information, the applicant has not taken the opportunity to elaborate on her claims at a hearing. The Tribunal considers this non-attendance strongly indicates there is no basis for the applicant's claimed fears and further adds to the Tribunal’s concerns regarding the applicant’s credibility.

24. The Tribunal does not accept there is no effective protection throughout Malaysia and that Muslims and police will harm her based on the independent country information available to the Tribunal regarding the professional Royal Malaysian Police.

25. Given the Tribunal finds that the applicant did not convert to Islam in 2011 and that these claims are not credible, the Tribunal subsequently does not accept the applicant will lose her freedom, be put in jail, harassed, harmed and sued by the government if she returns to Malaysia. Nor does the Tribunal accept that the applicant changed her name, registered with the government, followed Islamic religious instruction, or that her parents were also required to convert.

26. Furthermore, the Tribunal does not accept that Muslim groups have come to the applicant’s home and taken her to a Muslim temple and spoken to her boss and that she was fired from her job.

27. The Tribunal finds that the applicants claims are limited and vague, conflict with available independent country information and are not corroborated with any further detail that the applicant may have been able to provide had she attendee the hearing.

28. On the basis of country information before it and the applicant's very vague claims, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm, if she were to return to Malaysia.

29. 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).

30. 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.

31. For the reasons set out above I am unable to be satisfied that there is real chance that the review applicant has a real chance that he will face torture or be harmed in any way by Muslims if she returns to Malaysia now or in the reasonably foreseeable future.

    CONCLUDING PARAGRAPHS

32. 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).

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

    Rachel Westaway
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …