1505759 (Refugee)

[2015] AATA 3534

1505759 (Refugee) [2015] AATA 3534 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505759

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Suhad Kamand

DATE:29 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 29 October 2015 at 9:31am

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). For the reasons set out below the Tribunal has concluded that the decision under review should be affirmed.

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] April 2015.

3. The applicant was invited by the Tribunal to appear before it on 28 October 2015 to give evidence and present arguments. He did not respond to that invitation and did not appear before the Tribunal at the time and place scheduled.

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

9. The issue in this case is the applicant is a person in respect of whom Australia has protection obligations.

10. The applicant was born in Malaysia on [date]. His express claims for Australia’s protection and those arising on the evidence are that he fears harm in Malaysia. Specifically, he claims that he became involved in a criminal syndicate when he was young; when he tried to quit this gang its leaders and members pursued him, beat him and tortured him, so he fled to Australia. He claims he was almost beaten to death and his parents and relatives were threatened. He fears further beatings and torture by the gang and its affiliates if he returns to Malaysia. He does not think the authorities in Malaysia can protect him as they are corrupt and linked to these gangs.

11. In support of his application for review by this tribunal, the applicant provided a copy of the delegate’s decision record. That decision record indicates that the applicant was invited to an interview with the department to explore his claims for protection further, and that he did not attend the scheduled interview. He did not provide the Tribunal with any further evidence in support of the review application.

12. By letter dated 7 October 2015, sent to the applicant by email, the Tribunal invited the applicant to appear before it on 28 October 2015 to give evidence and present arguments. That letter was sent to the applicant’s nominated email address and informed the applicant that the Tribunal is unable to make a favourable decision on the information before it; and if he does not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear; or his application may be dismissed for without further consideration.

13. The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk or arising, 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. 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).

14. For the purposes of section 36(2)(a) the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country. For the purposes of s.36(2)(aa) (‘the complementary protection criterion’) the Tribunal must determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Malaysia, there is a real risk that he will suffer significant harm. On the evidence provided, the Tribunal cannot be satisfied about significant aspects of the applicant’s circumstances, such as: his current personal and family circumstances in Malaysia; any relevant matters which have transpired regarding his claims since he lodged his application; the nature of any harm he continues to fear in the reasonably foreseeable future and the motivations for the harm he claims to fear.

15. It follows that, on the information before it, the Tribunal cannot be and is not satisfied that: the applicant faces a real chance of persecution involving serious harm in Malaysia for a Convention reason now or in the reasonably foreseeable future. Accordingly, the Tribunal cannot be and is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for a Convention reason.

16. For the same reasons, on the evidence before it, the Tribunal cannot be and is not satisfied that 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 for the purposes of s.36(2)(aa) (‘the complementary protection criterion’).

    Conclusions

17. 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).

18. 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).

19. 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

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

    Suhad Kamand
    Member