1421141 (Refugee)

[2016] AATA 3780

1421141 (Refugee) [2016] AATA 3780 (2 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421141

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Filip Gelev

DATE:2 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 02 May 2016 at 10:50am

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] September 2014 and the delegate refused to grant the visa [in] December 2014.

3. On 10 March 2016 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 29 April 2016. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received.

4. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Nor has she contacted the Tribunal in relation to non-attendance at the hearing. 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.

   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 issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference and identity

21. Based on the copy of the applicant’s passport and her written evidence, the Tribunal accepts that the applicant is a national of Malaysia and has assessed her claims against that country for the purposes of ss.36(2)(a) and (aa).

22. The Tribunal further accepts that the applicant’s identity is as claimed.

    Claims

23. The applicant’s claims are set out in the application form. She claimed that at some unspecified point in the past at some unspecified location some unidentified individual or individuals sexually harassed her.

24. One day she was on the beach with a friend. Some people came and tried to flirt with the applicant and her friend. They both ran away. However, that same night, the same guys saw the applicant. She said that “they” tried to kiss her in a club at night or that one of them actually kissed her outside a club. She was crying and ran away. She went to the police who advised her they cannot do anything. Then “[a]fter some time, those guy came to my workplace and tourchring [sic] me. I was unfaithful and decided to come here.” She also claimed that the men pulled her hair while attempting to kiss her.

25. The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well founded’ or that it is for the reasons 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 the applicant to satisfy the Tribunal that all the statutory elements are made out. The relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much details as necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case of him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by the 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).

26. Furthermore, s.5AAA of the Act provides that it is the responsibility of the applicant to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

27. Due to the applicant’s non-attendance at his scheduled hearing the applicant did not elaborate on her claims and her assertions could not be tested. The applicant was put on notice that the Tribunal was unable to make a favourable decision upon the evidence before it in relation to her application.

28. The applicant has not provided any further information, nor has she given the Tribunal the opportunity to explore his claims at a hearing. This has left many questions regarding the applicant’s claims of past harm and future fears unanswered, including when and where these events took place, what the applicant means when she says that “those guy” came to her workplace and were “tourchring” her, and why she fears harm from the same men if she returns to Malaysia.

29. As a result, on the basis of the vague and undetailed evidence before it, the Tribunal does not accept that that these past events occurred, that is, that the applicant had problems with one or several men who flirted with her, tried to kiss her, kissed her, pulled her hair or were “tourchring” her.

30. The Tribunal is not satisfied that fear from these men is the reason she left Malaysia, nor that she has a subjective fear of harm if she returns to Malaysia now or in the reasonably foreseeable future.

31. Having regard to the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm amounting to persecution. Consequently, the tribunal is not satisfied that the applicant has a well-founded fear of persecution as set out in the Act.

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).

34. Having regard to the evidence before it, the Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia.

35. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

36. 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

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

    Filip Gelev
    Member