1504379 (Refugee)

[2015] AATA 3808

1504379 (Refugee) [2015] AATA 3808 (27 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504379

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Don Smyth

DATE:27 November 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 27 November 2015 at 3:38pm

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. The applicant is a citizen of Malaysia. He applied to the Department of Immigration (the Department) for the visa [in] August 2014. He claimed in particular to fear harm from members of a gang group.

2. [In] March 2015, a delegate of the Minister for Immigration refused to grant the applicant the visa.

3. The applicant has applied to the Tribunal for review of the delegate’s decision. The issues in this review are whether the applicant has a well-founded fear of being persecuted in Malaysia for one or more of the five Convention reasons (race, religion, nationality, membership of a particular social group or political opinion) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

4. On 21 October 2015, 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 6 November 2015. 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. The hearing invitation was transmitted by e-mail to the last e-mail address provided to the Tribunal by the applicant in connection with the review. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled 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.

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. 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’).

9. 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

10. The mere 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.  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. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. 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.)

11. In his protection visa application, the applicant indicated that he was born in Penang and that he had been living in Penang until October 2013. He submitted with his application copies of his birth certificate (with translation), his passport and his Driving Licence. The applicant indicated that he had arrived in Australia [in] October 2013.

12. The applicant provided a brief statement of his claims in his protection visa application. In summary, he claimed that he had joined a gang named “[name]” several years earlier. He had later found that it was wrong and wanted to quit the gang. He stated that it was a serious issue to quit and he was not allowed to do this. He would have faced punishment by the group. The applicant claimed that he had travelled to Australia “to avoid doing crime in Malaysia”. The applicant claimed that “they” had detained him for several days in a secret place, and had beaten him and hurt him. He had been given no food and treatment. He claimed that “they also sent leaders” to talk to his parents to persuade him to stay in the group. The applicant claimed to fear that they would beat him, hurt him or even kill him if he went back to Malaysia. He claimed that these sorts of things had happened many times in Malaysia and that there were lots of articles reporting such cases. He claimed to fear being harmed by members of the “gang group”. He stated that there were many gang groups in Malaysia. Their gang group was very famous and had a strict policy in relation to new members quitting the group. He claimed that members might face serious consequences if they wanted to quit the group. With regard to protection from the authorities, he stated that many of the “government offices” were members of “the gang group”. They took money from the group and would protect their group. If he reported the case to the police, the gang group would know immediately and he would be killed. The applicant indicated in the application that he would provide some articles about his group.

13. The Department’s file also contains documentation relating to an application for a bridging visa. This is not of direct relevance to the present matter.

14. The delegate’s decision (a copy of which was submitted in support of the review application) records that the applicant was invited to attend an interview in relation to his protection visa applicant but did not attend that interview. As noted above, the applicant also failed to attend the Tribunal hearing.

15. The applicant’s claims are vague and lacking in detail in a number of significant respects. For instance, there was a lack of detail as to precisely when he joined a gang. He did not detail how he joined. He has not detailed the nature of any activities associated with his claimed membership of a gang. He did not detail when he decided he wanted to quit or when his claimed detention and mistreatment occurred. There is a lack of detail concerning his claims about being detained, beaten and harmed, and about “leaders” being sent to talk to his parents.

16. On the basis of the very limited evidence before it, the Tribunal is not satisfied that the applicant has ever had been a member of, or had any association with, a gang or has ever sought to leave a gang. It is not satisfied that he has ever been detained, beaten or harmed by members of a gang or anyone else in Malaysia. It is not satisfied that anyone has sought to persuade him to stay in a group or has been sent to talk to his parents about such a matter. It is not satisfied that there is a real chance that he would be persecuted by gang members or anyone else in Malaysia. Looking to the reasonably foreseeable future, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Malaysia for any Convention reason. It is not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion in s.36(2)(a).

17. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. However, it is not satisfied on the very limited evidence before it that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that he will suffer significant harm at the hands of gang members or anyone else. It is not satisfied that there is a real risk that he will suffer significant harm in the form of being arbitrarily deprived of his life, having the death penalty carried out, or being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSIONS

18. 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).

19. 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).

20. 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

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

    Don Smyth
    Senior Member