1506314 (Refugee)

1506314 (Refugee) [2016] AATA 3071 (13 January 2016)
.
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506314
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:David McCulloch
DATE:13 January 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 January 2016 at 12:24pm

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 on 30 March 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.
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 but has not relied on any information in report in this decision.
Background and claims
The applicant arrived in Australia on a [temporary] visa [in] November 2014. The visa was valid until [date] February 2015. The application for a Protection visa was made [in] January 2015
The delegate of the Minister refused the application for a Protection visa [in] March 2015. The applicant did not attend the interview to which he had been invited with the delegate.
The following information is contained in the application forms for the Protection visa. The applicant was born on [date] in Penang, Malaysia. The applicant has never been married. The applicant lists both parents and [siblings] living in Malaysia. The applicant lists having lived at the same address in [location] from birth up until his departure for Australia in November 2014. The applicant has previously travelled on holiday to [countries].
A ‘personal statement’ by the applicant was provided which sets out his claims. The applicant indicates that he got hurt in Malaysia and if he returns his life will be threatened. The applicant indicates that he lives in a remote and quiet location. In July 2014, [number] people moved to a neighbouring property. They made noise causing the applicant to be unable to sleep. The applicant discovered that the neighbours were operating an illegal casino which attracted many people to gamble after midnight.
In September 2014, the applicant complained and said that he would go to the police if the noise was not reduced. The applicant said that he was ignored. He was told that if he went to the police he would be hurt. The applicant says that he was beaten by a number of these people and then he went home. The applicant did not complain to the police as he did not think he could make trouble.
The statement indicates that suddenly one night everything became quiet and ‘we’ heard the coming of the police. People were taken by the police and the gambling equipment confiscated. These people thought that the applicant was the one who complained to the police. They threatened the applicant to pay back the losses which was RM [amount]. The applicant explained that it was not him who went to the police but they did not believe him. He was threatened that if the money was not paid back he would be beaten to death. As a result, the applicant stayed at a friend’s place. The applicant complained to the police, but they would not accept his case and told him to solve the problem.
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.
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.
The Tribunal has a number of credibility issues with the applicant’s claims.
First, the applicant has given inconsistent evidence as to at what point he was beaten for complaining to the neighbours and gamblers making noise. In the applicant’s written statement he indicates that he was beaten on a Wednesday evening in September 2014 when he went to complain. The written statement makes no mention of being beaten subsequently, following the arrival of the police, when he was threatened and requested to pay RM [amount]. In contrast, in the Tribunal hearing, the applicant made no mention of being beaten when he went to complain on the Wednesday evening but indicated that he was beaten after police arrested the neighbours as a result of being blamed for the arrest.
When this inconsistency was pointed out to the applicant in the hearing, he indicated that he was beaten on the Wednesday night. The Tribunal pointed out to the applicant that in its questioning of him it had asked him on two occasions if anything happened on the Wednesday evening, other than him complaining about the noise, threatening to complain to the police with a response that the noise would continue and that he could complain to the police if he wanted. In response to these questions, the applicant made no mention of being beaten on this occasion.
The applicant then said that he was beaten after the police arrived. He then said that he was beaten sometime in September but could not recall exactly. The Tribunal pointed out to the applicant that the fact of being beaten would be very impactful and the Tribunal would expect him to remember when this occurred. The applicant said it was a long time ago.
Second, the applicant has been inconsistent as to his circumstances when the police arrived. In the applicant’s written claims he indicates that he was present when the police arrived one evening. This is made clear by the phrase ‘we heard the coming of police’ which suggests it was heard by the applicant and his family. In contrast, in the Tribunal hearing, the applicant indicated that he was at work when the police arrived and he was subsequently told of their arrival by his family. When this inconsistency was pointed out to the applicant, he maintained that he was at work when the police arrived and that the discrepancy must be the mistake of the person who wrote down his claims.
Third, there is an arguable inconsistency between the written claims and the applicant’s oral evidence in terms of the time between his complaint on the Wednesday night and the police arriving. The written claims indicate that after the Wednesday night complaint ‘suddenly one night’ the police arrived. In the Tribunal hearing, the applicant indicated that it was the next night. The Tribunal noted to the applicant the use of the expression ‘suddenly one night’ would not suggest that this had happened the very next night, as it would be logical to specifically indicate that the police had come the next night.
Fourth, there is a puzzling inconsistency in evidence provided by the applicant as to where he has lived. The application forms indicate that the applicant has lived at the same address in [suburb] since birth. In the Tribunal hearing, the applicant said that he lived in the village of [name] which was small, perhaps with [number] people, and in a remote location. He confirmed that he had lived there his whole life. The applicant showed the Tribunal his Malaysian identity card which showed his address as the one in [suburb]. It was difficult in the hearing obtaining from the applicant an explanation for the discrepancy. At one point, the applicant indicated that he had lived in [suburb] earlier but this was contradicted by claims that he had lived at the same address from birth with his parents.
These four issues cause the Tribunal to have significant doubts as to the applicant’s credibility. The first two issues raised go to factual matters central to his claims. The Tribunal does not think it is likely the applicant could be confused as to the circumstances in which he was beaten. This would have been a very impactful event and the Tribunal does not think the applicant would now be confused and uncertain as to when exactly it happened. The Tribunal considers that the applicant’s written claims clearly indicate that he was present when the police arrived and it is unlikely that a mistake of this nature would be caused by a misinterpretation.
The third issue is based on a fairly subtle use of language. The language of the written claims suggests that the police arrival was some period after the Wednesday evening complaint, in contrast to the applicant oral evidence that the next day. However, given the potential for communication issues the Tribunal gives this issue limited adverse weight.
The fourth issue is not a matter which relates itself to the core claims, but raises more general issues of concern. The applicant has been indirectly inconsistent as to where he has lived, and whether he has lived in the same location since birth. There is no clear explanation as to why the applicant’s identity card and application forms list addresses indicate him living in a medium-sized city yet he claims in the hearing to be living in a remote small village. This causes overall questions as to the applicant’s provenance and identity.
The cumulative effect of the inconsistencies is such that the Tribunal is not satisfied as to the applicant’s core claims. The Tribunal is not satisfied that the applicant was beaten by neighbours running a casino because they suspected him of complaining to police. The Tribunal is not satisfied that these neighbours are seeking compensation from the applicant and are looking to harm him. The Tribunal is not satisfied that the applicant complained to police about these neighbours who refuse to provide assistance.
In the alternative, if the applicant is being pursued for money and risks harm from neighbours and that local police will not investigate (which the Tribunal does not accept), the Tribunal is of the view that the harm is localised, and does not extend to all parts of Malaysia, and it would be reasonable to relocate to another part of Malaysia to avoid the harm. In the Tribunal hearing, the applicant indicated that after police indicated they would not assist, he went to stay with a friend about 30 minutes away for the two months before coming to Australia. He indicated that he had no difficulties when staying with his friend.
The Tribunal is of the view that the problems he claims he is facing (which the Tribunal does not accept) are localised issues. They relate to a neighbourhood dispute. There is no evidence that his neighbours have a reach beyond their immediate area. The applicant was able to live safely with a friend for two months 30 minutes away from his home. The Tribunal considers that the risk of harm does not relate to all parts of Malaysia.
When the Tribunal put to the applicant that he would be in a position to escape harm by living away from this area elsewhere in Malaysia, the applicant said that he did not have friends elsewhere. The Tribunal pointed out to the applicant that he had travelled to Australia and it might be expected that this would be a much difficult undertaking than relocating elsewhere in Malaysia. The applicant said that he has friends in Australia but not elsewhere in Malaysia.
The Tribunal does not accept that the applicant does not have friends elsewhere in Malaysia. He has given evidence that he stayed with a friend away from his home area to escape harm. In any event, the Tribunal does not consider that the failure to have friends in other parts of Malaysia would make relocating to other parts of Malaysia unreasonable. As a [age]-year-old man, who has demonstrated flexibility and resilience in moving to a foreign country, the Tribunal is of the view that the applicant can reasonably relocate elsewhere in Malaysia. The applicant indicated in hearing that he has worked in his local area erecting iron structures for events and has worked as a gyprocker in Australia. The Tribunal is satisfied that the applicant would be in a position to gain employment and to support himself in other parts of Malaysia. The Tribunal considers it reasonable for the applicant to relocate elsewhere in 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 and harm from neighbours who want compensation for the closure of their gambling business and/or wish to harm him and based on police not investigating his complaint. In any event, none of such claims would be persecution for any of the reasons set out in s.5J(1)(a). Were such core claims to be believed (which they are not), as indicated, the Tribunal considers that the harm is localised and is therefore not satisfied that the harm relates to all areas of Malaysia and thus 5J(1)(c) is not satisfied.
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 threats and harm from neighbours who want compensation for the closure of their gambling business and/or wish to harm him and based on police not investigating his complaint. 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 (s.36(2B)(a)).
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
Member

ATTACHMENT - 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.
…

[2016] AATA 3071

13 January 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Appeal

Jurisdiction