1505023 (Refugee)

[2016] AATA 4694

1505023 (Refugee) [2016] AATA 4694 (27 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505023

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Suhad Kamand

DATE:27 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 October 2016 at 2:41pm

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, a male national of Malaysia, first entered Australia [in] October 2011 holding an Electronic Travel Authority subclass 976 visa. That visa ceased [in] January 2012. While in Australia he was granted a [temporary visa] [in] January 2012. That visa ceased [in] April 2013. While holding that visa the applicant departed Australia [in] November 2012, returning [in] November 2012. He has not held any other substantive Australian visa. He applied for the Protection visa the subject of this review [in] December 2014. A delegate of the Minister for Immigration refused to grant the visa [in] March 2015 and the applicant sought this Tribunal’s review of that decision.

2. On the basis of all the evidence before it and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

3. Relevant law has been included at Appendix 1.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Generally, the issue for the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations.

5. The applicant’s express claims and those arising on the evidence are that he faces a real chance of serious and/or significant harm in Malaysia in connection with his desire and intention to protest against the unfair treatment of Chinese Malaysians for which he fears he will be jailed. He claims that his desire to protest is informed, at least in part, by past mistreatment he experienced as a Chinese Malaysian in Malaysia. He claims to fear mistreatment in the reasonably foreseeable future in connection with his Chinese ethnicity, and fears, for a number of reasons, that he will not be able to source suitable employment in Malaysia.   

   Issues before the Tribunal

6. The Tribunal must generally assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm if he returns to Malaysia. If the Tribunal is not satisfied that he is a refugee, it must then consider whether he is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that he faces a real risk of significant harm in Malaysia for any of the reasons claimed or arising on the evidence.

7. The Tribunal’s assessment is informed by a range of sources including: the Department’s file relating to the applicant which includes his Protection visa application form signed [in] December 2014, his written statement in support[1], and an audio recording of his Department interview held [in] March 2015. The Tribunal has listened to that audio recording. Document’s provided in support of the application generally comprise identity documents for the applicant as well as newspaper clippings and photographs which the applicant told the Tribunal depict his wife when she had [an illness] in around August 2009.  The Tribunal’s assessment is also informed by its detailed exploration of the applicant’s claims when he appeared in person before it on 5 October 2016 (2016 Appearance). During that appearance he communicated with the Tribunal through an interpreter in the English and Cantonese languages[2]. At the commencement of that appearance the Tribunal asked the applicant if there are any issues impacting his capacity to communicate about his claims and evidence with the Tribunal that he wishes to make the Tribunal aware of. He responded in the negative. The Tribunal’s considerations are informed by all of the above, as well as other sources, including independent sources, referenced where relevant, below.

   [1] folios 2 to 3,  [file number].

   [2] the applicant initially requested a Mandarin interpreter, however at the commencement of his hearing he indicated that he preferred a Cantonese interpreter. The interpreter present was accredited in interpreting both the Cantonese and Mandarin languages and the applicant’s request for a Cantonese interpreter was accommodated

   Assessment of the applicant’s claimed circumstances – credibility

8. Having had the opportunity to: discuss the applicant’s claims and evidence with him during his Tribunal appearance; and reflect on that evidence in the context of all the evidence before it, the Tribunal has concerns regarding the truth of central aspects of the claims and evidence advanced. While none of the Tribunal’s concerns are singularly determinative of the credibility of the claims made overall, cumulatively, and together with independent country information referenced below, they leave the Tribunal unable to be satisfied that the applicant faces a real chance of serious or significant harm in Malaysia in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence.

9. The applicant’s circumstances in Malaysia, generally, are set out in his Protection visa application form which was completed with the assistance of a person identified as [name], who is not identified as a Registered Migration Agent (RMA). The contents of that form are to the following effect: the applicant was born in [year] in Malaysia, where he is a citizen; he speaks, reads and writes in the “Chinese Cantonese”[3] language; he arrived in Australia in October 2011 holding a Malaysian passport issued in [2011] which expired in [2016]; he previously resided in [Country 1] from January 1987 until November 1988 for “work”, and in [Country 2] from January 1989 until July 1990, also for work[4]; while in Australia he sought and obtained a [temporary] visa in January 2012. The applicant identifies only one address where he has resided in Malaysia from January 1968 until October 2011, that address being in [town]. He indicates that: he completed [number] years of formal education in Malaysia; he was a [occupation] from January 1984 until October 2011, which is when he first came to Australia; he left Malaysia for Australia legally in October 2011 and returned there on one occasion in November 2012 to “visit family”[5]. At the time of application he indicated that his wife continues to reside in Malaysia as do his [children]. However, by the time of his Tribunal hearing he informed the Tribunal that his [one child] is now in Australia and has made an independent application for Australia’s protection.

   [3] folio 31

   [4] folio 29

   [5] folio 20

10. The applicant’s claims for Australia’s protection are detailed in a personal statement which is typed in the English language and signed in the applicant’s name with a handwritten date of [December] 2014 (2014 Statement). That statement is to the following effect:

    a.the applicant was born in [year] in Kuala Lumpur, Malaysia;

    b.he encountered persecution by the local government and police in Malaysia and ran away to Australia [in] October 2011;

    c.friends recently informed him of his right to apply for a Protection visa;

    d.the Malaysian Government treats new migrants unfairly, with many privileges being enjoyed only by Malaysians. People of Chinese ethnicity are also excluded;

    e.when he graduated junior high school in Malaysia aged [number] years, he abandoned his studies and looked for work. However, because Malays are favoured over Chinese, it was hard to find work, so he went to [Country 1] and “[Country 2] working on gaining experiences”[6];

    f.after this, in 2007 he opened a small company specialising in [a certain line of] work, employing [people]. To compete with Malaysian businesses which were favoured, his company charged less than a Malaysian companies;

    g.in late May 2011 he was awarded a Malaysian Government project for an agreed sum of [amount] “including the cost of [materials] and labour after the completion of the project”. His company worked hard to finish the project before the “due date”, however they were paid only half the money and were told they would get the rest later. But 2 weeks later they were told the balance would not be paid “since the project has not been inspected”[7]. One month later, the applicant queried where the balance of his money is and was yelled at by a staff member who said “Chinese are all liars and pushed the price up deliberately, so it is not too bad to pay you half”. The person threatened that if the applicant continued to negotiate the price he would lose the opportunity to work in that area again;

    h.after this incident the applicant “gathered few people who had similar experiences as I did and sat silently in front of the [location] together [in] October 2011” bringing with them a banner which “indicated that Chinese need fair treatment and social status and we also wore clothes with similar slogan”. As a result the police took the protesters, including the applicant, to the police station. His family “paid a large amount of money to bail me out”;

    i.after this, being disillusioned by his treatment as a Chinese Malay, the applicant sold his company at a low price and applied for a visa to come to Australia, arriving in October 2011;

    j.initially he did not know he was eligible to apply for a Protection visa, but he later learnt that he could through friends;

    k.if he returns to later he will continue to protest against the unfair treatment of Chinese Malays, and “will definitely be thrown into jail”.

    [6] Folio 3

    [7] Folio 3

11. The applicant’s general circumstances as well as the detail of the above claims were discussed with him at length during his Tribunal appearance. Multiple aspects of his oral evidence to the Tribunal impress the Tribunal as problematic and did not accord with or support the written claims made, with no plausible explanation being provided as to why that was the case. 

12. Regarding his prior travels he told the Tribunal that he travelled to [Country 2] and [Country 1] around 20 years ago for work. He voluntarily returned to Malaysia because he was working illegally in [Country 1] and [Country 2]. He also felt that he had achieved something in [Country 1] and [Country 2], making enough money there to return to Malaysia. He said that from that time he remained in Malaysia until coming to Australia in October 2011. He returned to Malaysia once since that time, in around November 2012. He stayed for three weeks on that occasion, staying with his wife and children in the house they shared together before he came to Australia. His wife and children continue to live in that house, with the exception of [one child] who is in Australia. He said that the family home in Malaysia is owned by him. It is subject to a mortgage the repayments for which should be extinguished by 2019. He said that his wife last worked in Malaysia in around 1998. She stopped working in order to look after their children. His children are now aged around [ages]. All but the eldest attend school in Malaysia. He said that he was is in regularly contact with his family in Malaysia until around October last year and he is not aware of his wife or children having any problems there. He said that the reason he stopped communicating with his family in around October 2015 was because he and his wife had an argument because she wanted him to return to Malaysia and he does not want to.

13. Regarding his [child] in Australia, the applicant said that [he/she] is aware of his protection visa application. He gave his consent for the content of his protection visa application to be discussed with his [child] should the Tribunal consider that appropriate or necessary.

14. The Tribunal asked the applicant about his reasons for coming to Australia in October 2011. He responded that: he wanted to see if Australia offers a suitable lifestyle; and he heard people say that you can apply to be a refugee. He repeated that these are the reasons he decided to come to Australia in 2011. When asked why, in those circumstances, he waited until December 2014 to apply for a Protection visa, he responded that he had a [temporary] visa and when that was cancelled he applied for a Protection visa. When asked why he did not apply onshore for a Protection visa rather than a [temporary] visa if he came to Australia in 2011 in part because he had heard of the Protection visa he said that he thought he would give Australia a “trial” to see if it suits him before applying for a permanent visa.

15. Regarding the preparation of his Protection visa application he told the Tribunal that: he cannot speak, read or write in the English language; he had assistance completing his Protection visa application form and his 2014 Statement; he believes the content of his completed Protection visa application form and 2014 Statement is correct because he gave the person who helped him the information and they wrote it in the form. He reiterated that he told the person who helped him about his personal circumstances and they wrote it down for him. He described the person who helped him as fluent in the Cantonese and English languages. He heard that the person had also applied for a Protection visa and generally helps others to apply for Protection visas.  It was a person the applicant was introduced to by a friend.

16. The Tribunal asked the applicant about why he cannot or wishes not to return to Malaysia. He responded that he knows best where he should live and which place suits him best. 

17. The Tribunal asked the applicant if he has any fears of harm in Malaysia. He responded that he does not. He added that there are no threats against him in Malaysia. When asked why he has applied for a Protection visa he responded that he loves Australia so much that, even though his wife wants him to return to Malaysia, he does not want to return there. When asked if he thinks he will be harmed in any way should he return to Malaysia he responded “no”.

18. The Tribunal asked the applicant about the [temporary] visa application he referred to having lodged and obtained in around January 2012, in particular about his intentions in applying for that visa. The applicant responded that [his] intention in applying for the visa was to remain legally in Australia to see if Australia suits him. When asked what he was looking for in making that assessment he referred again to lifestyle. He said he loves living here. He has been working since he arrived here in 2011 on a range of [jobs]. His assessment of whether Australia suits him impressed the Tribunal as being informed largely by the availability of work.

19. The Tribunal explored with the applicant the detail of his written claims. Specifically, the Tribunal asked the applicant if he was ever involved in any political activities in Malaysia. He responded “no”. The Tribunal asked if he was ever involved in any protest in Malaysia. He said he was, on only one occasion. He said that it was in around May 2011. He added that: he had not been paid for his work, but later he was fully paid by instalments. He said the final outstanding payment for his work in Malaysia was made in around August or September 2011, shortly before he came to Australia. The Tribunal put to the applicant that this does not appear to accord with his written claims in which he states, in 2014, that half of the contract sum owed to him for work done by his company was still outstanding. He responded that his written statement is not correct and repeated that he has been paid all amounts owed to him in Malaysia. When asked why his written claims would identify half the contract sum as outstanding in 2014 when it had been paid in full in 2011 he responded that “maybe I had the wrong memory and said the wrong thing”.

20. Regarding the protest activity in May 2011 the applicant told the Tribunal: the protest took place in May 2011, before the full contract sum was paid to him; he was taken to the police station for his involvement in the protest. When asked to describe the protest he said that they went to the office of the [company]. When asked to name the [person in charge of the company] he said he cannot recall. The Tribunal asked what happened when he got to the [office]. He responded vaguely that “we had some exchanges back and forth”. When asked if he could be more specific he said that the [company] said we did not do a good job so they are withholding payment. The Tribunal asked whether the protesters took any protest materials with them, such as banners, and whether they wore anything special. He responded variously “no” and “I am not sure”. He added that he did not take anything to the protest with him personally and he did not see any of the other protesters, numbering only three or four people, holding anything. The Tribunal asked why his 2014 Statement refers to them taking a banner with them which “indicated that Chinese need fair treatment and social status and we wore clothes with similar slogan”. He responded that “maybe” the person who assisted him prepare his written statement added those details in.

21. Regarding police involvement in the protest the applicant told the Tribunal that he had to stay at the police station for one day in connection with the protest. When asked how he was allowed to leave police custody he responded that a “friend bailed me out”. When asked what the nature of the bail was and whether it was money he responded that no money was required. He said that his friend had to give a personal undertaking to ensure that the applicant would not do anything illegal. He added that, at no point did any money have to be paid to the police or anyone else to secure his release. The Tribunal explained to the applicant that this also does not appear to accord with his 2014 Statement which says that “my family paid a large amount of money to bail me out”. He responded that this is incorrect. When asked why that would be in written statement if his written statement was intended to reflect his true circumstances he responded that “maybe” the person who helped write it “went too far”.  

22. The Tribunal asked the applicant whether the above events or any other have given the applicant a police record in Malaysia. He responded in the negative and said that he has never had a police record in Malaysia. He said that he has never had any difficulties entering or departing Malaysia in his true identity.

23. Based on the above evidence in its totality, and given the significant discrepancies between the applicant’s oral evidence to the Tribunal and his 2014 Statement, the Tribunal cannot be and is not satisfied that the applicant ever participated in any protest in Malaysia in connection with outstanding wages or anything else, or that he was held in police custody for any period. The Tribunal is not satisfied that the applicant ever needed to be bailed. While the Tribunal accepts as true that the applicant had an outstanding contract sum owed to him for several months in Malaysia, the applicant’s own evidence was that all money owed to him for his work in Malaysia was already paid in full to him before he came to Australia in October 2011. The Tribunal does not accept that the applicant being owed money for a few months while in Malaysia or any events flowing from that gave or give rise to any risk of harm to the applicant in Malaysia, including a real chance of serious and/or significant harm as contemplated by the relevant law.

    Discrimination against Chinese Malaysians

1. The Tribunal explored with the applicant his claims that he has, in the past, experienced mistreatment as a Chinese Malaysian and that he fears that he will continue to protest against the unfair treatment of Chinese Malaysians and “will definitely be thrown into jail”. Relevant to this claim, as reasoned above, the Tribunal does not accept that the applicant has ever engaged in such protest activities or that he has ever come to the adverse attention of the Malaysian police or authorities for any such reasons. The Tribunal does not accept that he has any history of conduct which would suggest he has any interest or desire to protest for any reason in the reasonably foreseeable future.

2. Also relevant is the following. During his Tribunal appearance the Tribunal asked the applicant to detail any mistreatment he or any member of his family has experienced in connection with being Chinese Malaysians. He responded that he has no examples.  He made no reference to his written claims of being persecuted by the local government or police.

3. The Tribunal discussed with the applicant the following observations of the Australian Department of Foreign Affairs and Trade (DFAT) in its July 2016 Country Information Report on Malaysia in respect of Chinese Malaysians in Malaysia:

   “Chinese Malaysians

   3.4 Chinese Malaysians constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians.

   3.5 Chinese Malaysians make up a high percentage of the professional and educated class, dominate business and commerce sectors and have high relative wealth compared to other ethnic groups in Malaysia. The majority of ethnic Chinese are concentrated in the west coast states of Peninsular Malaysia with significant percentages (30 per cent and above) living in the large urban centres, including Kuala Lumpur, Penang, Johor, Perak and Selangor. Credible Chinese Malaysian community contacts have told DFAT that young Chinese Malaysians increasingly seek economic migration opportunities abroad.

   3.6 Chinese Malaysians freely participate in political life, represented by ministers in the current cabinet and participation in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three opposition parties of the Pakatan Harapan coalition. The DAP won 38 seats at the 2013 election, a significant increase from 28 seats in 2008. The DAP is often portrayed in pro-government media as ‘anti-Malay’. Chinese Malaysian community members told DFAT that, while they believed this was mostly a political tactic, it did contribute to a sense of ethnic division and isolation from mainstream Malaysian society. They also commented that the 1MDB corruption scandal had galvanised anti-government support amongst Chinese Malaysians and had led to greater political engagement. For example, Chinese Malaysians were prominent in and helped contribute to the higher overall turnout at the 2015 Bersih 4 rallies throughout Malaysia compared to earlier protests in 2007, 2011 and 2012. All four Bersih protests have called for transparent government and strengthened parliamentary democracy in Malaysia.

   3.7 There are comparatively fewer ethnic Chinese in the Malaysian civil service. The predominant use of the Malay language is a major barrier to Chinese employment in the civil service. On the other hand, contacts told DFAT that Chinese employees are preferred in the private sector, mostly because many business owners are Malaysian Chinese.

   3.8 Chinese Malaysians are able to access public primary or high school education but increasingly choose to attend one of the 1,284 Chinese primary schools and 61 Chinese secondary schools. This is due to concerns about the quality of public education and their perception that the public curriculum is influenced by Islam. Despite the removal of government-sanctioned ethnic quotas for public universities in 2002, admission decisions remain heavily biased towards ethnic Malays. Malaysia’s matriculation programs favour bumiputera students applying for entrance to state universities. Some ethnic Chinese are not awarded a place in public universities despite having high matriculation scores. Since the formation of private universities in Malaysia, ethnic Chinese have consistently formed the bulk of the students within Malaysia’s non-government universities. An increasing number are choosing to complete their tertiary studies abroad.

   3.9 On 12 to 13 July 2015 a disturbance, referred to as the ‘Low Yat riot’, occurred at a popular retail centre in central Kuala Lumpur. More than 100 Malays shouted anti-Chinese slogans, destroyed property and attacked bystanders following social media reports that a Chinese Malaysian vendor cheated a Malay man over a fake smart phone. Police detained 25 people for rioting, sedition and theft. Officials dismissed any fraud by the vendor, and downplayed racial elements blaming the outburst on social media. Credible contacts told DFAT that the incident was not indicative of a broader trend of societal violence against Chinese Malaysians.

   3.10 DFAT assesses that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.

4. The Tribunal put to the applicant that the above information is generally consistent with other reliable sources and, when considered together with what the applicant has described of his personal and family circumstances in Malaysia, does not suggest to the Tribunal that he faces a real chance of serious or significant harm in Malaysia in connection with his Chinese ethnicity. The Tribunal asked the applicant if he wishes to comment on the above information. In response he offered that in the registered business he had in Malaysia it was a requirement to have at least one native Malay person in the company to get registration. He said that it is not possible to register a business in Malaysia with only Chinese Malaysians in the business. However, when asked whether his own former company in Malaysia had any native Malay owners/partners he responded that it did not. He maintained, however, that the company was registered but said that their payments were delayed. His own evidence did not support his claim that a business can only be registered in Malaysia if there is at least one native Malay business partner. Of further concern, as put to the applicant by the Tribunal, his claims regarding the requirements for business registration in Malaysia do not accord with reliable information contained on the website of the Companies Commission of Malaysia[8] which only identifies the following requirements for business registration: the owner to be a Malaysian Citizen or Permanent Resident of Malaysia; the owner must be aged between 18 years and above; the owner or a partner only must submit the application for registration[9]. The information on that website makes no reference to an owner having to be ethnically Malay.  In response to this the applicant offered only that his business in Malaysia had only “normal registration”. Based on all the evidence before it, the Tribunal does not accept that a business in Malaysia can only be registered if there is at least one ethnically Malay owner /business partner or that business owned entirely by Chinese Malaysians cannot be registered.

   [8] >

   Further, based on the totality of the information before it, including the report from DFAT and what the Tribunal accepts of the circumstances of the applicant and his family in Malaysia, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in Malaysia in the reasonably foreseeable future connection with his Chinese ethnicity.

   Concerns regarding age and employment

5. In exploring with the applicant whether he has any further concerns about returning to Malaysia he told the Tribunal that he is worried that he is now almost [age] years old and he is worried about his ability to make a living which could sustain his family in Malaysia. When asked why he could not work in Malaysia like he did for many years before coming to Australia, and like he has been doing in Australia since around October 2011, he offered that he no longer has his business in Malaysia and he lost his business partners and friends when he came to Australia. He said that it would be impossible for him to start from the beginning again in Malaysia. When asked why he could not seek employment at one of the many privately owned Chinese Malaysian businesses in Malaysia he responded that, had he not ended his business in Malaysia to come to Australia it would not be a problem but it would be hard to start his business again now at his current age. The applicant did not address why he would not be able to find work in Malaysia given his extensive work history in Malaysia, [Country 1], [Country 2] and Australia.

6. The Tribunal also explored with the applicant the circumstances of his wife and the relevance of the documents submitted at 47 to 49 of the Department file. He said that those documents are of local news articles and photos from around August 2009 when his wife had [an illness]. He said that he submitted those documents only to show that he has been unlucky in his life. He said that his wife is now fully [recovered]. He identified no further relevance of these documents or his wife’s [illness] in 2009 to his claims for Australia’s protection.

7. Based on the evidence before it, while the Tribunal accepts that the applicant’s prospects for employment and his income earning potential is not as promising in Malaysia at it is in Australia, the Tribunal is not satisfied on the evidence before it, including the applicant’s own evidence regarding his extensive work experience in Malaysia, [Country 1], [Country 2] and Australia, that the applicant will not be able to source employment in Malaysia from which he will able to sustain himself and his family. The Tribunal is not satisfied on the evidence before it that the applicant faces in Malaysia, in the reasonably foreseeable future, economic or employment difficulties which amount to or give rise to a real chance of serious or significant harm as contemplated by the relevant law.

   Conclusions of fact

8. Based on the totality of the evidence before it, including the cumulative considerations, reasoning and findings above, the Tribunal is not satisfied that the applicant faces in Malaysia, in the reasonably foreseeable future, a real chance of serious or significant harm as contemplated by the relevant law, for any of the reasons claimed or arising on the evidence. Specifically, the Tribunal is not satisfied that the applicant has had any prior encounters with the Malaysian authorities which have given him any adverse profile suggesting or giving rise to a real chance of serious or significant harm in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant has in the past, or has any intention or desire currently or in the reasonably foreseeable future, to participate in any protest activities of any nature, including in respect of the treatment of Chinese Malaysians. The Tribunal is also not satisfied that the applicant faces in Malaysia, a real chance of mistreatment rising to the level of serious or significant harm in connection with his Chinese ethnicity. The Tribunal is also not satisfied that the applicant faces employment or economic difficulties in Malaysia which give rise to a real chance of serious or significant harm as contemplated by the relevant law for any reason claimed or arising on the evidence.

9. 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).

10. 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).

11. 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

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

    Suhad Kamand
    Member

    
    

    Appendix 1

    RELEVANT LAW

13. 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

14. 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).

15. 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.

16. 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.

17. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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

24. 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’).

25. ‘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.

26. 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

27. 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.