1504308 (Refugee)

[2015] AATA 3753

1504308 (Refugee) [2015] AATA 3753 (23 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504308

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Roslyn Smidt

DATE:23 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 23 November 2015 at 4:05pm

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.

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicant, who is a citizen of Malaysia, applied for the visas [in] July 2014 and the delegate refused to grant the visa [in] February 2015.

3.    The applicant appeared before the Tribunal on 14 October 2015 to give evidence and present arguments.

THE LAW

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

CONSIDERATION OF CLAIMS AND EVIDENCE

9.    The applicant is an ethnic Malay from Malaysia. He attended university and other institutions of higher education and obtained a [qualification]. He worked in [occupations] until 2012. In November 2013 he established his own business.

1. The applicant’s wife is included in this application. At the hearing it was established that the couple are in a de facto relationship.

2. In a written submission provided to the Department the applicant claimed to be at risk of persecution because he had advocated for racial equality in Malaysia. He said that the Malaysian government enforced bad laws and cheated during elections and colluded with criminal gangs, which caused him to criticize the government.

3. The applicant said that he had always been friendly to Chinese colleagues and because of this his fellow Malays hated him and were hostile towards him. He claimed that on one occasion he tried to prevent some Malays robbing a Chinese man and said that he had been verbally abused and hit as a result.

4. The applicant indicated that he was deeply committed to continuing to advocate for an end to racial discrimination and corrupt government because he wanted a stable, secure future for his children. However, he believed that he would not be allowed to fight for his beliefs in Malaysia because the government and local Malay gangs would not allow this. He said that he believed he would face enormous torture if he returned to Malaysia.

5. The applicant provided what appear to be printouts of two pages websites, one in English; the other in Chinese. They appear to be critical of the government. No explanation for their inclusion in the application was provided.

6. [In] February 2015 the applicants were invited to attend an interview with the delegate to discuss their claims. They did not respond to this invitation and failed to attend interview. No explanation was provided for this.

7. [In] February 2015 the delegate found that the applicants had not made credible claims and were not entitled to protection in Australia.

8. On 29 March 2015 the applicants sought review of that decision. No additional information or submissions were provided with this application.

9. The applicants attended a hearing of the Tribunal on 15 October 2015. The Tribunal explained the criteria for obtaining a protection visa and asked why they believed that they were entitled to such a visa. The applicant’s wife confirmed that she was not making any individual claims for protection.

10. The applicant was asked why he was afraid to return to Malaysia. He said that he been involved in fights and he was threatened so he left for Australia. He said that he did not report these problems to the police because some of them were not honest.

11. When asked for specific details of the problems which had caused him to leave Malaysia, the applicant said that in about April 2012 he was in the street when he and some friends saw a Malay man on a motorcycle attempting to rob a Chinese. The applicant said that he lived in a small village and knew the robber by sight and knew that one of the robber’s [relatives] was a policeman. The applicant and two friends stopped the Malay man. The applicant wanted to take him to the police, but other members of the Malay community who had gathered refused to allow this. As there were a large number of people involved there was nothing the applicant could do and the man was allowed to go, taking the money he had stolen. After this the applicant went alone to the police station to make a report. He was told that as he was not the victim, he could not make a report.

12. Following this many people in the local community would not have anything to do with the applicant.  A few months later he left his job for personal reasons and tried to establish [a business], but was unable to get much work. He believes this was partly due to the influence of people he had offended. He later tried to establish [another] business, but this also failed. He does not know why this happened. In addition, the applicant’s car was stolen twice. He is not sure who stole the car, but he thought it was just bad luck. The applicant added that people were threatening his [sibling]. He did not know why this was happening, but he feared it could be related to his problems. When asked, the applicant said that his [sibling] was still in Malaysia and was OK.

13. When asked what he thought would happen to him if he returned to Malaysia, did not respond but instead said that he was thinking of returning home as his mother was unwell.

14. The Tribunal observed that it appeared that the applicant had not experienced serious problems following the incident involving the Chinese man and that it was difficult to see how some of the problems he had mentioned during the hearing were related to this incident. The Tribunal also noted that as the applicant’s problems related to an incident involving local people in his village it appeared that he could avoid any future problems by relocating elsewhere in Malaysia. The Tribunal also noted that the applicant appeared to be well-educated and appeared competent to find his way in the world, there was no reason why he would be unable to do this. 

15. The applicant agreed with the Tribunal’s observations and added that he had lived and worked in [another country] in the past.

16. The Tribunal observed that the applicant’s willingness to return to Malaysia also suggested that he did not fear serious harm in his homeland. The applicant said that he knew he was not a refugee and added that he had decided to return home before he received notification of the hearing, but believed that he should come as that was the correct thing to do. He said that he intended to purchase a ticket as soon as possible.

17. The Tribunal accepts that the applicant opposes racism and that he was involved in a confrontation with other Malays in his village when he tried to stop a local man robbing a Chinese man in about April 2012. The Tribunal also accepts that this resulted in some animosity towards him on the part of other Malays in the village. However, the Tribunal does not accept that the applicant suffered serious harm amounting to persecution prior to his departure from Malaysia as a result of his involvement in this confrontation in particular or his views on racism more generally.

18. The Tribunal does not accept that being disliked or shunned by people in his local area amounted to serious harm amounting to persecution. The applicant was not harmed by anyone in his village and was able to continue at this job until he left sometime later for personal reasons. Furthermore, there is no evidence before the Tribunal which suggests that the applicant suffered any other harm prior to his departure from Malaysia because of his views on racism. While the applicant’s businesses may have failed there is no evidence that this was caused by his views on racism. Similarly, the claim that the theft of his car and the problems faced by his [sibling] were linked to his stand on racism is mere speculation, unsupported by any evidence.

19. While the written statement provided with the applicant’s protection visa application stated that he opposed the government in Malaysia because it was corrupt and appeared to indicate that he had experienced problems on more than one occasion because of his views on racism, the only problem he mentioned when asked for details of the problems which caused him to leave Malaysia during the hearing was the April 2012 confrontation.   If the applicant experienced any other significant problems as a result of his views on racial tolerance or the Malaysian government the Tribunal is confident that he would have mentioned them when asked to do so at the hearing.

20. The Tribunal has noted that applicant’s statement that he was aware that he was not a refugee and that he intended to return home shortly. These statements clearly indicate that the applicant does not fear serious harm if he returns to Malaysia.

21. After considering all the evidence, the Tribunal does not accept that the applicant suffered serious harm as result of his views on racism or the Malaysian government prior to his departure from Malaysia and finds that he does not face a real chance of experiencing serious harm amounting to persecution for any of the reasons in the convention because of these views.

22. 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), which requires the Minister to have 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 will suffer significant harm.

23. The applicant’s claims for complementary protection rely on the same facts as his claims to refugee status. As discussed above, the Tribunal accepts that applicant faced some animosity from local Malays due to his stand on racism. However, there is no evidence before the Tribunal which suggests that he experienced significant harm as a result of this prior to his departure from Malaysia, or that there is a real risk he would experience such harm if he returned to Malaysia now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.

CONCLUDING PARAGRAPHS

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicants Protection visas.

Roslyn Smidt
Member