1505876 (Refugee)
[2016] AATA 3068
•11 January 2016
1505876 (Refugee) [2016] AATA 3068 (11 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1505876
COUNTRY OF REFERENCE: Malaysia
MEMBER:David McCulloch
DATE:11 January 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 January 2016 at 4:51pm
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
This is an application for review of a decision made by a delegate of the Minister for Immigration [in] April 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] January 2015. The delegate refused to grant the visa on the basis that the applicant did not fulfil the criteria for protection.
The applicant appeared before the Tribunal on 17 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English-languages.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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 before it DFAT Country Report – Malaysia, 3 December 2014.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant arrived in Australia [in] December 2013 on a [temporary] visa. The visa ceased [in] March 2014 and the applicant was an unlawful noncitizen from that point. The applicant applied for the Protection visa [in] January 2015 and he holds an associated Bridging visa from the date of application.
The decision of the delegate refusing the visa was made [in] April 2015. The applicant did not attend the interview to which he was invited as part of the delegate’s consideration of the claims.
The relevant application forms for the Protection visa provide the following information. The applicant was born on [date] in [Malaysia]. The applicant speaks Cantonese. The applicant is married. The applicant lists no other countries visited before his travel to Australia.
The applicant claims to have left the country to avoid harm from a friend. He says he has been bashed up and detained by his friend and associated gangsters. The applicant is in fear for his life and for his family and children in Malaysia. The applicant indicates that he has been helping his friend’s wife and daughter in relation to domestic violence. He indicates that he was accused of having an affair with his friend’s wife. The applicant indicates that he ‘asked his gangster friends to attend his house, question my family members about my whereabouts, and threatened to harm them’. The applicant indicates that if he returns to Malaysia he will confront his friend and the gangsters and he will sustain harm as a result. It is likely to bring harm to the applicant’s family as well if they have knowledge that he has returned to Malaysia. The police are unable to protect the applicant as there is no obvious evidence to charge them.
Hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Malaysia and accordingly his claims will be assessed against Malaysia.
Based on the further detail of claims in the Tribunal hearing, the Tribunal has credibility concerns with the applicant’s claims. In addition, the fear of harm claimed by the applicant as the reason for him leaving Malaysia is not consistent with the significant delay in the applicant applying for a protection visa. However, in the event that the Tribunal were to accept the key factual claims made by the applicant, the Tribunal is of the view that the harm feared is localised and it would be reasonable for the applicant to similarly relocate, as the applicant claims that his family has done.
In the hearing, the applicant indicated that the difficulties began about two months before he left for Australia. He said a female school friend rang him and asked for a lift to the station. He said that this person was someone with whom he had only a casual acquaintance and they would meet occasionally on the street. He dropped this person at the station and there was no conversation as to why the request been made.
The applicant indicated that about two days later this woman’s husband came to his office (the applicant had his own [business] with [number] employees). The husband said, ‘where you dropped the wife, you better bring back to me’. The applicant asked what happened. The husband said that he was suspicious that the applicant was consorting with his wife.
The Tribunal asked the applicant how it was that the husband knew that he had picked his wife up. The applicant responded that it was a small town and the neighbours would have told him.
After this meeting, the applicant said that he received a phone call at his office from ‘underworld people’. This was one or two weeks after the incident. They said that whatever wrong the applicant had done he had to amend. They said that they were not going to be polite to him. When asked what else happened apart from the phone call, the applicant said that they came to his home. The applicant was at home. They told the applicant’s wife that her husband had to make good his mistakes otherwise the family would suffer.
When asked, the applicant said that there were two people who visited his house. When asked if anything else has happened the applicant said that he was worried that his family would be hurt. The applicant said that within two to three weeks the whole family had relocated to the applicant [sibling]’s house in a town [distance] km away. In that time, the applicant says that he sold his business. When the Tribunal put to the applicant that this therefore would have been about a week or so before he came to Australia, he agreed that that was the case.
When asked if there was any more contact from these gangsters, the applicant said that because he came to Australia nobody knows. He indicated that they did not know that his family was living in this distant location.
The Tribunal asked the applicant how it was that he knew that there were domestic violence issues with the woman he had driven to the station (as the written claims suggest) given that he had said that she provided no explanation during the trip. The applicant said that her neighbours told him this.
The applicant did not give his evidence in a way that led the Tribunal to consider that he was speaking from actual experience. The applicant frequently provided information in generalities and had to be pressed to provide specifics. In terms of plausibility, it strikes the Tribunal as very unlikely that based on one phone call and one visit to his home by these ‘gangsters’ that the applicant would sell his business, uproot his family including his [children], and himself make the decision to travel to Australia, notwithstanding that the family were safely housed in a location a significant distance away from the claimed harm.
The Tribunal notes some specific components of the evidence that are problematic. The applicant’s written claims indicate that he was bashed and detained. There was no reference to this happening in his oral evidence. Specifically, the applicant did not mention this when he was invited by the Tribunal to indicate if anything happened other than the gangsters making threats when they visited his home. The Tribunal considers that the applicant has been inconsistent in relation to this aspect of his claim.
It was not immediately apparent from the evidence given by the applicant in the hearing how it was that the husband of the woman he had driven to the station would have known that it was the applicant who drove her there. It was similarly not apparent how the applicant would have known that there were domestic violence issues given that the woman had not revealed any information to the applicant. When asked about these issues, the applicant said that neighbours would have told the husband about the applicant picking his wife up. The Tribunal considers that this is speculative and unlikely. The applicant similarly said that neighbours informed him there was domestic violence. When asked when this was, the applicant said that the neighbours came and told the applicant without him asking. He said this was after gangsters came to his home. When asked how neighbours would know to tell this to the applicant, he said that people were talking about the gangster visit and this is how the neighbours would have found out. The Tribunal indicated to the applicant that it found these explanations lacking in credibility, which it does. The Tribunal does not accept the applicant’s explanation that this was because it was a small town.
If he applicant’s core claims are to be believed, on his own account, his family have safely relocated a significant distance away from the claimed harm. In the hearing, in response to specific questions, the applicant indicated no difficulties suffered by the family living with the applicant’s [sibling].
The Tribunal notes that in the determination as to whether a person is refugee, the real chance of persecution relates to all areas of a receiving country (s.5J(1)(c)). In relation to the complementary protection criterion, there is not a real risk of significant harm if it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm (s.36(2B)(a)).
In response to whether the applicant could reasonably relocate, such as to where his family are living, the applicant indicated that his presence might attract people to him. He indicated that if he starts a [business], that the husband of the woman that he helped is also in this business and this may cause him to be identified. The Tribunal indicated that it found this somewhat difficult to accept if the area where the family were now living was so far away.
Credibility concerns with the applicant’s claims are supported by the delay of over a year after arrival in Australia in applying for the Protection visa, noting in particular that there was a delay of nine months from the applicant becoming an unlawful noncitizen. The applicant in the hearing confirmed that his prime motivation for travelling to Australia was the fear of harm that he and his family faced. If that were the case, the Tribunal considers that the applicant would have made enquiries about protection options and a much earlier stage, particularly at the point at which he became an unlawful noncitizen. The applicant in the hearing said that he is illiterate and had no information until he was told of protection options by a friend. The Tribunal does not accept these as valid reasons for the delay. The applicant gave evidence that he had operated a [business] in Malaysia for [number] years with a number of employees which suggests a degree of intelligence, acumen and common sense. The Tribunal considers that if the applicant’s claimed fears are legitimate that he would have investigated options at an earlier point in time.
The Tribunal is not satisfied based on all the evidence of the applicant has been a truthful witness. It is not satisfied that the applicant or his family has been threatened either by the husband of a wife to whom he gave a lift to the station or gangsters acting on his behalf. The Tribunal is not satisfied that the applicant and his family fled to the applicant [sibling]’s home a long distance away because of the fear or that the applicant came to Australia because of the fear.
In the alternative, if the applicant and his family did flee their home area due to fear of gangsters (which the Tribunal does not accept), the Tribunal considers that the applicant would be in a position to live safely elsewhere in Malaysia as demonstrated by the fact that his family have lived without difficulty in the applicant’s [sibling]’s home [distance] km away from the family home. The Tribunal notes that the applicant fears that both himself and his family will be harmed. If the applicant claims are to be believed (which they are not), the Tribunal is not satisfied there is evidence which establishes that the risk is anything other than local and that it would be reasonable for the applicant to relocate to other parts of Malaysia without a real chance of serious or significant harm. The Tribunal is not satisfied that the applicant’s presence in other parts of Malaysia would attract the attention of the gangsters from home area or the husband of the wife that he assisted. The Tribunal does not consider it plausible that the applicant would come to the attention of the husband of the woman he assisted should he start a [business] [distance] km away from the husband’s location.
When in the hearing the Tribunal asked if there were any other grounds on which he feared harm, he said that he feared business competition. The Tribunal indicated to the applicant that this would not fall within the definitions of serious or significant harm. The applicant then said that perhaps the reason for the husband sending gangsters was for competitive reasons. The Tribunal is not satisfied that the husband sent gangsters for competitive or any other reasons. In the event that such claims are to be believed (which they are not), the applicant can escape harm by relocating to other parts of Malaysia.
In summary, in terms of whether the applicant is a refugee, as the Tribunal has not accepted the core factual claims of the applicant, it is not satisfied that he faces a real chance of serious harm, or a well-founded fear of persecution, based on threats by the husband of a woman who he gave a lift to the station to, or gangsters that husband has sent to threaten harm the applicant and his family, or based on competitive threats.
In terms of the complementary protection criterion, given the factual findings on core claims, the Tribunal 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 due to threats by the husband of a woman to whom he gave a lift to the station, or gangsters the that husband has sent to threaten and harm the applicant and his family, or based on competitive threats. Were such claims to be believed (which they are not) the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of significant harm.
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 s.36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Statutory Construction
0
2
0