1506466 (Refugee)
[2015] AATA 3876
•7 December 2015
1506466 (Refugee) [2015] AATA 3876 (7 December 2015)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1506466
COUNTRY OF REFERENCE: Malaysia
MEMBER:Paul Windsor
DATE:7 December 2015
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 07 December 2015 at 2:05pm
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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas [in] December 2014 and the delegate refused to grant the visas [in] April 2015.
The applicants applied to the Tribunal for review of this decision on 12 May 2015.
On 18 November 2015, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case at a hearing on 4 December 2015. The letter advised the applicants that if they did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicants to appear before the Tribunal. The letter also advised the applicants that if they were not able to attend the hearing they should advise the Tribunal as soon as possible.
No response to this letter was received from the applicants and the applicants did not attend the hearing scheduled for 4 December 2015. As the applicants have not responded to the invitation to attend a hearing, and have not contacted the Tribunal to explain their non-attendance or sought to engage further in the review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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 issue in this case is whether there is a real chance that, if the applicants return to Malaysia, they will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of Claims
In their Protection visa application the applicants made the following claims:
·they left Malaysia to ‘escape the persecution from Muslim’;
·they had experience ‘physical abuse’ in Malaysia;
·they fear that if they return to Malaysia ‘Muslim will do further harm to us’, because ‘we are Buddhist’;
·they do not think the authorities in Malaysia can and will protect them because the authorities are Muslims.
Findings and Reasons
On the basis of the copies of the applicants’ Malaysian passports provided to the Department, the Tribunal accepts that the applicants are citizens of Malaysia and that in each case their identity is as they claim it to be. The Tribunal accepts that Malaysia is the applicants’ country of nationality for convention purposes and is the applicants’ ‘receiving country’ for complementary protection purposes.
The applicants have presented their claims in vague and generalised terms without providing detail regarding the basis for their concerns or examples of any physical abuse that they claim they experienced in Malaysia.
Section 5AAA of the Act makes clear that it is the applicants’ responsibility to specify all particulars of a claim to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicants in specifying, any particulars of the applicants’ claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
There is a lack of detail in the applicant’s assertions that they experienced physical abuse from Muslims in Malaysia. Nor have they elaborated on why they claim to fear that Muslims will do them harm because they are Buddhist, or why they consider the Malaysian authorities would not protect them because the authorities are Muslim. At question 50 of Part C of their application for a Protection visa (folio 18 of departmental file [number]), the applicants indicated that they would provide details of documents to be provided to support their claim for protection ‘later’. However, no documents have been provided since the protection visa application was lodged [in] December 2014. The departmental decision indicates that [in] February 2015 the principal applicant was informed in writing that her application may be decided without requesting further information from her. She was informed that if she wished to discuss her claims in an interview she should contact the department within 7 days to arrange an interview. The delegate’s decision indicates that the principal applicant did not contact the department to arrange an interview. As noted above, the applicants were contacted by the Tribunal on 18 November 2015 and were advised that the Tribunal had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case at a hearing on 4 December 2015. No response to this letter was received from the applicants and the applicants did not attend the hearing scheduled for 4 December 2015.
If the applicants had attended the hearing on 4 December 2014, the Tribunal would have asked them about these claims, sought further detail, and tested the credibility of the claims. For example, the applicants have not indicated the nature of the physical abuse they claim to have suffered, when this occurred, who perpetrated the abuse, whether it occurred once or on multiple occasions, the context of the incident or incidents, whether Malaysian Muslims were involved, and whether the applicants sought the assistance of the authorities in relation to any incidents and, if so, how the authorities responded. In relation to their claim to fear persecution by Muslims because of their Buddhist religion, they have not indicated whether their claim is based on a specific incident and, if so, the nature of this incident, or whether it is based on the situation confronting Buddhists in Malaysia generally. Similarly, they have not indicated whether there is a specific incident and, if so, the nature of the incident, that has given rise to their claim that they do not think the authorities in Malaysia can and will protect them because the authorities in Malaysia are Muslims.
The delegate’s decision indicates that the principal applicant arrived in Australia [in] March 2012 as the holder of a Subclass 976 (Electronic Travel Authority) (Visitor visa), and remained in Australia unlawfully after this visa ceased [in] June 2012. She applied for a Protection visa [in] December 2014. The Tribunal also gives weight to the fact that the applicant did not apply for protection until over two years after she arrived in Australia. The Tribunal finds that this delay is inconsistent with the applicant having escaped physical abuse in Malaysia and fearing persecution in Malaysia due to her Buddhist beliefs.
On the basis of the available evidence, the Tribunal does not accept that the applicants suffered ‘physical abuse’ in Malaysia and does not accept that the applicants left Malaysia to escape persecution from Muslims in Malaysia.
In relation to the applicants’ claim that they fear that if they return to Malaysia ‘Muslim will do further harm to us’, because ‘we are Buddhist’, the Tribunal has given weight to country advice from the Australian Department of Foreign Affairs and Trade (DFAT)[1] that indicates:
[1] Australian Department of Foreign Affairs and Trade, DFAT Country Report, Malaysia, 3 December 2014.
·While the Malaysian Constitution accords a ‘special position’ for bumiputera, permitting affirmative action policies that favour ethnic Malays, it forbids discrimination against citizens on the basis of religion and race;
- There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia;
- While they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service, DFAT assesses that ethnic Chinese in Malaysia generally do not experience discrimination or violence on a day-to-day basis;
·Buddhists represent 19.8 per cent of the total population of Malaysia and there are many non-Muslim places of worship in Malaysia; and
·Overall, DFAT assesses that Buddhists are normally able to practice their religion without interference and do not face discrimination on a day-to-day basis in Malaysia.
Based on the evidence provided by the applicants, which does not provide a basis for concluding that the applicants have been targeted for persecution in Malaysia due to their religion, and the available country advice, which does not support a finding that Buddhists in Malaysia generally are at risk of harm from Muslims in Malaysia, the Tribunal finds that the applicants do not face a real chance of persecution amounting to serious harm from Muslims in Malaysia due to their Buddhist religion.
In relation to the applicants’ claim that they do not think the authorities in Malaysia can and will protect them because the authorities are Muslims, as the Tribunal has found that there is not a real chance that the applicants would be targeted for harm in Malaysia, the Tribunal finds that the applicants would not require the protection of the authorities in Malaysia.
Do the applicants have a well-founded fear of persecution if they returned to Malaysia?
Having considered the applicants’ claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicants will be targeted for serious harm, if they were to return to Malaysia, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
Having regard to the findings of fact set out above, the Tribunal also does not accept that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that the applicants will suffer significant harm, now or in the foreseeable future. The Tribunal therefore is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that either 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, neither applicant satisfies the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Paul Windsor
Member
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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