1504174 (Refugee)

[2015] AATA 3929

1504174 (Refugee) [2015] AATA 3929 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504174

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Bruce Henry

DATE:21 December 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 21 December 2015 at 3:54pm

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] March 2015.

3. The applicant was given an opportunity to appear before the Tribunal on 21 December 2015 to give evidence and present arguments, however he did not appear and the Tribunal has received nothing from him since the application for review was lodged.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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, 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.

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 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).

6. 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.

7. 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’).

8. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. The Tribunal has before it the Department’s file and the Tribunal’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

11. Documents on the Departmental file establish that the applicant was born in Malaysia in [year]. He provided a copy of the decision record of the delegate for the decision under review to the Tribunal with his application. The decision record states that he arrived in Australia in December 2006 as the holder of a subclass 976 electronic travel authority visa granted to him in Malaysia. That visa expired [in] March 2007 and he has been in Australia since that time. He was unlawfully in Australia from then until he lodged the application under review and was granted an associated bridging visa [in] June 2014.

12. The applicant stated in his protection visa application that he feared returning to Malaysia because ‘I am a gay’. He claimed that he had a gay partner in Malaysia and that they were subject to ‘being harassed, threatened and isolated by all local societies’. Because of this they separated in 2006, and he then came to Australia. He claimed that he was ‘beaten frequently by police officers’, and feared that he would be jailed if he returned , and that his former partner had committed suicide in 2013.

13. The departmental file also contains a statutory declaration from the applicant’s sister, who lives in Australia, in which she states that he is a homosexual who had a partner in Malaysia and has also had partners in Australia. She states that his ‘sexual behaviour was not accepted by my family. He and his partner was [sic] harassed all the time, they lost their jobs as well. He had to travel to Australia to avoid persecution.’ She also states that she knew that his previous partner committed suicide in Malaysia.

14. The applicant failed to attend at the interview scheduled for him by the Department, and his application was rejected. As noted above, he provided a copy of the Decision Record of the Department with his application, in which the delegate noted that he had a number of concerns about the applicant’s claims which he had planned to raise with the applicant at interview, however the applicant failed to attend.

15. The applicant lodged his review application with the Tribunal on 25 March 2015, however he did not provide any additional evidence in support of his claims for protection. 

16. On 15 October 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his 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 December 2015. The letter was sent by email to the applicant at the address for service that he provided to the Tribunal in his application for review. No reply was received from the applicant.

17. The Tribunal also sent two SMS reminder messages to the applicant about the hearing, on 14 December 2015 and 18 December 2015, to the telephone number provided in his application.

18. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. He did not contact the Tribunal regarding his failure to attend the hearing. In these circumstances, and pursuant to s426A 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.

19. Accordingly, this matter has been determined on the evidence available to the Tribunal.

20. The Tribunal notes that the fact that a person claims fear of persecution 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 reason 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 of 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, 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 or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

21. The Tribunal also notes that the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

22. In this case, on the basis of all the evidence before it, the Tribunal is satisfied that the applicant is a male from Malaysia. Given his failure to attend either the interview at the Department or the hearing scheduled for him by the Tribunal, the Tribunal is unable to satisfy itself of the veracity of the claims he made in his application to be homosexual and to fear persecution for that reason should he return to Malaysia. In these circumstances the Tribunal is also unable to satisfy itself that the claims raised have a Convention nexus i.e. that they occurred for reasons of the applicant’s political opinion, race, religion, nationality, or membership of a particular social group, or that he would be unable to access protection. 

23. The Tribunal has considered the country information referred to in the decision record of the delegate which the applicant provided to the Tribunal, and has also had regard to the current DFAT report[1] which states:

    3.73 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community in Malaysia depends on the socio-economic and religious status and geographic location of those involved. Many middle and upper class, educated and urban Malaysians are open about their sexuality within their family and community circles. However, many LGBTI individuals, particularly Muslims, continue to hide their identity to avoid harassment.

    [1] Department of Foreign Affairs and Trade, DFAT Country Report Malaysia, 3 December 2014

24. On the basis of this country information, the Tribunal is not satisfied that the applicant faces a real chance of serious harm as defined in s.91R of the Act, even if his claim to be homosexual is accepted.

25. Accordingly, after considering the available evidence, the Tribunal is unable to satisfy itself that the applicant faces a real chance of serious harm in the reasonably foreseeable future in Malaysia for one of the reasons specified in the Refugees Convention. Therefore the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Convention reason.

26. The Tribunal then considered whether 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 he will suffer significant harm.  However, without the benefit of a hearing the Tribunal is unable to satisfy itself in this regard. 

    CONCLUSIONS

27. 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).

28. 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).

29. 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) for a protection visa.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Bruce Henry
    Member