1505257 (Refugee)

[2016] AATA 3102

1505257 (Refugee) [2016] AATA 3102 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505257

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Jolliffe

DATE:19 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2016 at 11:29am

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] October 2014 and the delegate refused to grant the visa [in] March 2015.

3. The applicant was invited to appear before the Tribunal on 19 January 2016 to give evidence and present arguments. The applicant did not attend before the Tribunal on that day at the time and place at which he was scheduled to appear.

   Relevant 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. The Tribunal has had regard to the information contained in the DFAT country report for Malaysia dated December 2014 in considering the applicant’s claims.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the Department and Tribunal files relating to the applicant together with information from a variety of sources

10. The issues in this case the applicant claims to fear harm if he returned to Malaysia on the basis of his Buddhist religion and on the basis that he is of Malay/Chinese ethnic extraction. .

11. In his protection Visa application which was lodged [in] October 2014 the applicant claimed that he was born on [date] in Sabah in Malaysia. He claims to be of the Buddhist faith. He claimed to have arrived in Australia [in] May 2013 and claimed to have no right to enter or reside either temporarily or permanently in any other country apart from Malaysia. He claimed that he was issued with a Malaysian passport in [month] 2013. He claimed to have lived in Malaysia from his birth until coming to Australia in May 2013. He claims that he is a [job] by occupation.

12. He provided reasons as to why he came to Australia in his protection Visa application. He claimed that he left Malaysia because he was persecuted by Muslim people and that was because he had formed a relationship with a Muslim girlfriend. He claimed that relationship was not accepted or permitted by her parents because the applicant is of the Buddhist faith. He claimed that Muslim extremists did not allow he and his girlfriend to form a “spouse relationship” and that if he wanted to continue the relationship he had to become a Muslim and he refused to do so. He claimed that he was threatened as was his girlfriend and that he was “tortured and harmed by Muslim extremists”. He claimed that he and his girlfriend had been forced to separate and that the girlfriend had refused to marry a Muslim person. He claims that he was beaten and hurt extensively and that he and his girlfriend had “escaped” to live in another city. He claimed that her parents reported them to the police and the police detained them and that the applicant was detained for seven days in a police station and that he was tortured and beaten in the police station.

13. He also claimed that because he is a Malay Chinese that he is treated as a second-class citizen in Malaysia and that marriage between a Muslim and Chinese is prohibited and that when he and his girlfriend were located they were forced to separate. He claimed his girlfriend committed suicide in 2013 and that her parents hate the applicant and have tried to kill him. He claimed that if he returned to Malaysia that the police and the girlfriend’s parents would try to find him and he claimed that his parents had been harassed and that extreme Muslims wanted to kill him. He claimed his girlfriend’s parents blamed him for the death of their daughter and her parents would kill him if he returned to Malaysia. He claimed that racial and religious problems killed his girlfriend. He claimed that religious problems occurred everywhere on a daily basis in Malaysia. He claimed that Malay Chinese people are persecuted by Muslim people in Malaysia. He claimed that he was blamed for the death of his girlfriend and he sought protection in Australia.

14. The applicant was invited to attend an interview [in] March 2015 with a department delegate in relation to his protection Visa application. The applicant did not attend that interview. The delegate declined to grant the applicant a protection Visa.

15. On 19 November 2015 the Tribunal wrote to the applicant by email advising that it had considered all the material before it relating to his application but 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 19 January 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 on his case without further notice. No response was received from the applicant. The Tribunal forwarded an SMS hearing reminder to the applicant’s mobile phone number on 12 and 18 January 2016. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In those circumstances and pursuant to section 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. On the basis of the copies of pages from his passport attached to his protection Visa application the Tribunal accepts that the applicant is a Malaysian citizen and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is the applicant’s country of nationality for Convention purposes and is the receiving country for Complementary protection purposes.

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

18. As indicated the applicant claims to fear harm of persecution in Malaysia on the basis of his Buddhist religion and on the basis of his Malay/Chinese ethnic extraction. The Tribunal has referred elsewhere in these reasons to the applicant’s claims to fear harm if he returned to Malaysia.

19. If an applicant chooses not to attend the hearing the Tribunal has only the information contained in the material before it from which to make a determination. In the present case the information provided by the applicant to date does not provide a sufficient basis to allow the Tribunal to be satisfied as to the claims made by the applicant. The Tribunal is not satisfied on the material and information before it the applicant has a well-founded fear of persecution on the basis of his Buddhist religious beliefs or on the basis of his Malay/Chinese ethnic extraction. The Tribunal is not satisfied on the basis of the evidence before it as to the applicant’s claims that he was persecuted by Muslim people because he had formed a relationship with a woman of the Muslim faith and that he had been prevented by Muslim extremists from forming a relationship with that woman because of their differing religious backgrounds or that he was told to convert to Islam to continue that relationship. The Tribunal is not satisfied on the basis of the currently available information as to the applicant’s claims that he and his girlfriend were threatened by  Muslim extremists and that he was tortured and harmed by those extremists. The Tribunal is also not satisfied on the currently available information as to the applicant’s claims that he and his girlfriend had been forced to separate and that she had refused to marry another Muslim person. The Tribunal is also not satisfied as to the applicant’s claims that he and his girlfriend were forced to relocate to another location in Malaysia and that he had been beaten and hurt extensively and that the police had detained him on the basis of the complaint from the girlfriend’s parents and that he had been held by the police for seven days and had been beaten and tortured by the police during that detention.

20. The Tribunal is also not satisfied on the available information as to the applicant’s claims that he has been treated as a second-class citizen in Malaysia because he is of Malay/Chinese ethnic extraction. The Tribunal is also not satisfied as to the applicant’s claims that marriage between a person of the Muslim faith and a person of Chinese ethnic extraction is forbidden in Malaysia. The Tribunal notes that freedom of religion is guaranteed under the Constitution in Malaysia according to the DFAT country report dated December 2014 but that Sunni Islam is the state religion of Malaysia and that the propagation of other religions is illegal. That report also indicates that the Department assessment is that Buddhists are normally able to practice their religion without interference and do not face discrimination on a day-to-day basis in Malaysia. The country report also indicates that a range of Sharia based laws apply to Muslims at state level and that state governments do not recognise marriages between Muslims and non- Muslims and children born of such marriages are considered illegitimate. Malaysia, according to the information in the country report, has a two track legal system comprising civil law, based on English common law at federal level and sharia based law, administered at state level. The Tribunal is also not satisfied on the currently available information as to the applicant’s claims that religious and racial differences in Malaysia caused the death of his girlfriend or that religious problems occur on a daily basis in Malaysia or that people of Malay/Chinese ethnic extraction are persecuted by Muslim people in Malaysia.

21. The Tribunal is also not satisfied on the currently available information as to the applicant’s claims that his girlfriend committed suicide and that her parents hate the applicant and blame the applicant for her death and have tried to kill him or that his parents have been harassed or that extreme Muslims wish to kill the applicant. The Tribunal is also not satisfied on the currently available information as to the applicant’s claims that his former girlfriend’s parents would try to kill him if he returned to Malaysia or that he would be pursued by the police if he returned to Malaysia or that he is blamed for the death of his girlfriend in Malaysia. Had the applicant attended a Tribunal hearing the Tribunal it would have asked the applicant questions about his claims. Without further evidence and information in relation to the applicant’s claims the Tribunal is not satisfied as to the applicant’s claims to fear harm in Malaysia for the reasons that he claims. The Tribunal is not satisfied on the currently available information that the applicant has a well-founded fear of persecution or faces a real chance of serious harm on the basis of his claims should he return to Malaysia either now or in the reasonably foreseeable future. The Tribunal is not satisfied on the currently available information that the applicant is a refugee.

22. The Tribunal has also considered whether the applicant might meet the alternative criterion for complementary protection. For the reasons set out above and on the basis of the currently available information the Tribunal is not satisfied that the applicant faces a real risk of significant harm on the basis of his current claims. The Tribunal is not satisfied on the information before it that there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Migration Act.

    Overall Summary

23. 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).

24. 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).

25. 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

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

    James Jolliffe
    Member