1500467 (Refugee)

[2016] AATA 3668

1500467 (Refugee) [2016] AATA 3668 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500467

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:23 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2016 at 3:53pm

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. 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).

5. 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.

6. 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’).

7. 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.

8. 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.

9. The applicant provided a photocopy of the biodata page of a Malaysian passport and MyKad identity card.

10. The applicant claims to fear religious persecution in Malaysia. He claims to fear the Malaysian government and local Muslim extremists. In a statement he claims that the Malaysian government treats people of different religions differently. As a Christian he was employed in a [company]. Because he praised Jesus Christ in front of the Malaysians, he was condemned to have breached the rules that no one could promote Christianity to the Malaysians, and but for some connections helping him he would have been imprisoned. He was fined. In Malaysia he cannot practice his faith freely, many Christians have died in Muslim countries because of their faith. In Malaysia he must be on alert every day to protect himself and lived under pressure of religious discrimination and persecution every day. He has been diagnosed with a [medical condition] and fears returning to Malaysia where he fears he will be separated from God and will die if he returns to Malaysia.

11. The applicant did not arrange and attend an interview with the delegate. The delegate proceeded to make a decision and found that the applicant had made his claims in a few vague statements only, had not submitted nay evidence that he was convicted and fined for proselytising, had shown no evidence of his medical condition and had not explained why he had waited more than four years to apply for protection in Australia despite his stated fear of religious persecution in Malaysia. The delegate went on to not accept that he was ever convicted of proselytising or had a [medical condition], and that the country information indicated that the applicant’s stated fear of religious persecution may not be credible or genuine.

12. The applicant applied for review and included a copy of the delegate’s decision with his application. He provided a short statement stating he has a real fear of return to Malaysia where he would be persecuted and punished as a Christian by the local Islamic extremist groups who hate all Christians, and states that in Malaysia Islamic extremist organisations are very powerful and they harass, beat and kill innocent Christians and Buddhists and burn churches and homes. In his local area the situation is worse, the extremists use big knives to kill Christians, mobs break windows and set fire to houses and if not for his family his house would have been burned down already. Many Muslims extremists leave Malaysia to fight with IS, so as a powerless Christian he will be severely persecuted if he returns to Malaysia. Chinese Christians suffer for their Christianity and their Chinese ethnicity, being bullied, raped, robbed, kidnapped and extorted. He has been going to church in Australia every week. He did not provide any further information.

13. On 19 February 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 21 March 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. On 11 March 2016 and again on 18 March 2016 the Tribunal sent SMS hearing reminders to the mobile telephone number recorded for the applicant, the second of which had a delivery failed notification. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The applicant has not contacted the Tribunal to explain why. 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.

    Findings

    Identity and nationality

14. The applicant claims to be a citizen of Malaysia, and has provided photocopies of the biodata page of a Malaysian passport and MyKad identity card to the department. On the basis of this evidence and with no evidence to the contrary, I find that the applicant is a citizen of Malaysia, his country of nationality, and his receiving country. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country and I find that he does not have such a right.

    Credibility

15. 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 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. 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.)

16. 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.

17. 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).

18. The Tribunal invited the applicant to a hearing as his claims were vague and limited. He had not taken up the opportunity to discuss his claims with the Department, or to provide further information about his claims. He did not attend the Tribunal to discuss these claims.

19. The Tribunal has significant concerns regarding the claims of the applicant. Had the applicant attended the hearing, the Tribunal would have questioned him about his claimed fear of religious persecution in Malaysia, his fears of the Malaysian government and local Muslim extremists, his claimed conviction and fine for proselytising and his claimed health issues. Had the applicant attended the hearing, the Tribunal would have discussed these matters, and why these things may have caused the applicant difficulty in his circumstances and caused him to fear harm on return.

20. The applicant claims to fear religious persecution in Malaysia and to fear the Malaysian government and local Muslim extremists. He claims the Malaysian government treats people of different religions differently, that he was convicted and fined for proselytising and avoided jail only through connections, that he cannot practice his faith freely, many Christians have died in Muslim countries because of their faith, that in Malaysia he must be on alert every day to protect himself and lived under pressure of religious discrimination and persecution every day, that he has been diagnosed with a [medical condition] and fears returning to Malaysia where he fears he will be separated from God and will die if he returns to Malaysia, that he has a real fear of return to Malaysia where he would be persecuted and punished as a Christian by the local Islamic extremist groups who hate all Christians, that in Malaysia Islamic extremist organisations are very powerful and they harass, beat and kill innocent Christians and Buddhists and burn churches and homes, that in his local area the situation is worse, the extremists use big knives to kill Christians, mobs break windows and set fire to houses and if not for his family his house would have been burned down already, that many Muslim extremists leave Malaysia to fight with IS, so as a powerless Christian he will be severely persecuted if he returns to Malaysia, that Chinese Christians suffer for their Christianity and their Chinese ethnicity, being bullied, raped, robbed, kidnapped and extorted.

21. Had the applicant attended the hearing the Tribunal would have discussed these claims with the applicant and asked him about his claimed conviction and fine, the connections that allowed him not to be jailed, in what ways he cannot practice his faith freely, details of the claimed attacks in his village or on Christians and Christian Chinese people in Malaysia that he makes vague claims about, the claimed incident where his house would have been burned down were it not for his family. The applicant has provided only vague and undetailed claims. The Tribunal has significant concerns regarding the credibility of the applicant’s claims in this regard.

22. The applicant claims to have a [medical condition]. If he had attended the hearing the Tribunal would have questioned him about this claim and tried to understand how this led to a fear of harm on return. The applicant has provided only vague and undetailed claims in this regard and the Tribunal has significant concerns regarding the credibility of the applicant’s claims in this regard.

23. He fears that on return he will not have religious freedom, and will be harmed by the Malaysian government and local Islamic extremists. He fears being persecuted and punished as a Christian by the local Islamic extremist groups who hate all Christians, and also fears harm on the basis of his Chinese ethnicity. He has provided no more than these general claims about his claimed fears and has not detailed what harm specifically he fears, in what ways he will not have religious freedom, how and who specifically he fears harm from. Had the applicant attended the hearing the Tribunal would have asked him about these things.

24. Had the applicant attended the hearing, the Tribunal would have discussed relevant country information about the situation in Malaysia for ethnic and religious minorities, and proselytising. He did not, so the Tribunal could not raise these questions with him.

25. The applicant has not attended the hearing with the Tribunal to provide more information about his claims, where he was advised in the hearing notice that the Tribunal 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 applicant’s claims are vague and very limited, with very little detail regarding the situation that has led to his claimed fearing harm. As stated above, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and the failure of the applicant to attend the Tribunal hearing, and the departmental interview before that, and vague and limited claims as provided, leads the Tribunal to have significant credibility concerns about the claims of the applicant.

26. On the basis of the very limited evidence before it, the Tribunal is not satisfied that the applicant has experienced religious persecution in Malaysia, fears the Malaysian government and local Muslim extremists, nor that he was convicted and fined for proselytising. On the basis of the very limited evidence before it, the Tribunal is not satisfied that the applicant has a [medical condition] or any other health issue. On the basis of the very limited evidence before it, the Tribunal is not satisfied that the situation in his local area is worse, that mobs break windows, set fire to houses, and that he narrowly avoided having his house set fire to, that he will be harmed in any of the vague and generalised ways he describes as a Christian or as a person of Chinese ethnicity or as a Christian of Chinese ethnicity. On the information available to it the Tribunal does not accept that the applicant has a genuine subjective fear of serious harm from the Malaysian government, local Muslim extremists, or anyone else. On the evidence before it, the Tribunal does not accept there to be a real chance that the applicant faces serious harm if he returns to Malaysia, now or in the reasonably foreseeable future on the basis of his religion, ethnicity, membership of a particular social group or any other reason.

27. Having considered the applicant's claims, the Tribunal finds that there is no real chance that the applicant will face persecution for any Convention reason or reasons if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for any of those reasons. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations because the person is a refugee as defined in the Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

28. 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.

29. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from the Malaysian government, local Muslim extremists, or anyone else if he 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 Convention definition. As the Tribunal has not accepted his claims, 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.

30. 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).

31. 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).

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).

    DECISION

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

    Sean Baker
    Member