1513020 (Refugee)

[2016] AATA 3789

1513020 (Refugee) [2016] AATA 3789 (19 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513020

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:David Corrigan

DATE:19 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 19 April 2016 at 2:55pm

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 [in] August 2015 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] May 2015.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

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 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

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant’s claims can be summarised as follows.  He was born in [year] in [Malaysia].  He arrived in Australia in January 2015 on a visitor visa that allowed a three month stay in Australia.  The applicant was involved in a gang but repented.  There was a big fight between the Malay gang and [Gang 1].  The Malays thought he was involved and came to his house to ask for money and make a problem.  He was whacked severally by the Malay gang.  When he called the authorities they ignored him as he had a criminal record.  His car was burnt and he went into hiding and came to Australia.

   Country of reference

10. The applicant claims to be a Malaysian national.  Based on the copy of his passport, I find that Malaysia is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Assessment of claims

11. I have carefully the applicant’s claims but I do not consider him a credible witness.  I do so for the following reasons:

    ·The applicant gave significantly and fundamentally inconsistent evidence.  The applicant’s oral evidence at the hearing was very different to that in his protection visa application.  Asked what problems he had with gangs, he said when he went to movies they would come and harass him and this occurred on three occasions and they used bad language.  He later said he could not remember anything else happening and he did not refer to the matters in his protection visas concerning Malay gangs.  His evidence at the hearing was very different to his claims in his protection visa application where he said he was involved in a gang but repented.  In his application he had claimed that there was a big fight between the Malay gang and [Gang 1] and the Malays thought he was involved and came to his house to ask for money and make a problem.  In his application he claimed he was whacked severally by the Malay gang.  He claimed his car was burnt and that he went into hiding and came to Australia.  The applicant told the Tribunal that he could not read or write but he admitted to signing the application and I do not accept it is credible that his claims could be so vastly different and I find this detracts from his credibility.

    ·The applicant told the Tribunal that he had problems with the police.  He said he was jailed after a confrontation with the police at [a venue] in 2011.  He said it was a 24 hour [venue] and after he complained they would not give him[service], the boss came and said give them[service].  He said 10 minutes later the police came and grabbed him and yelled at him.  He said that two weeks later the police came and took him away and that he was jailed for seven days but he was not convicted.  He said the police constantly threatened him that he would be jailed.  However, in his protection visa application form, he made no mention of any of these incidents or that he had any fear of the police.  The applicant commented to the Tribunal that he had mentioned the police.  However, it is apparent from his protection visa application that he had not in fact indicated that the police had ever targeted, detained or harmed him.  The applicant signed the application form and I do not accept that he would not have mentioned such events if they had actually occurred or that he had a fear of the police if he actually had a fear of the police. I find these matters detract further from his credibility.

    ·The applicant told the Tribunal that in July 2013 some people came and beat him at his shop and took stuff.  He said he went to the police and they filed the case and it went to court but no one was charged and he did this because he wanted compensation and insurance.  The applicant submitted a police report, dated [July] 2013, in relation to this incident.  The Tribunal asked the applicant who the perpetrators were and he said he did not know.  Asked whether they were Chinese, Malay or Tamil, he said they did not know.  I do not accept that it credible or plausible that the applicant would not know the race of the persons who he claims beat him and took stuff from his store and again I note that the applicant made no reference to this incident in his protection visa application.  Whilst I accept he made a police report and tried to obtain compensation and insurance monies in 2013, I do not accept that the incident actually occurred.  I find these matters detract further from his credibility.

    ·The applicant told the Tribunal that he arrived in Australia [in] January 2015 on a three month visa; however he did not lodge his application for a protection visa until [May] 2015.  When the delay was put to him, he merely said “yes”.  I find the delay in applying for protection is a further matter that detracts from his credibility.

12. Given these highly significant concerns about his credibility, I do not accept that the applicant was involved in a gang but repented.  I do not accept that there was a big fight between the Malay gang and [Gang 1].  I do not accept that the Malays thought he was involved and came to his house to ask for money and make a problem.  I do not accept that he was whacked severally by the Malay gang.  I do not accept that when he called the authorities they ignored him as he had a criminal record.  I do not accept that his car was burnt and he went into hiding and came to Australia.  I do not accept when he went to movies, gang members harassed him and used bad language.  I do not accept that he was jailed after a confrontation with the police at [a venue] in 2011.  I do not accept that the police came and grabbed him and yelled at him.  I do not accept that two weeks later the police came and took him away and that he was jailed for seven days but he was not convicted.  I do not accept that the police constantly threatened him that he would be jailed.  I do not accept that July 2013 some people came and beat him at his shop and took stuff.  I do not accept that he is or was ever of adverse interest to a Malay gang, the police or anyone else.

13. An authoritative and recent source (put to the applicant for comment at hearing), the Australian Department of Foreign Affairs and Trade (DFAT) have commented:

    3.10 Indians constitute the third largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against ethnic Indians.

    …

    3.14 DFAT assesses that ethnic Indians generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.[1]
    
    

    [1] Department of Foreign Affairs and Trade, DFAT Country Report Malaysia, 3 December 2014.

14. The applicant told the Tribunal that if you wanted help, the Malays would not help.  I have considered his comments concerning Malays, but the applicant told the Tribunal he worked as [occupation] in Malaysia which shows he was able to earn a livelihood.  Whilst I accept that there is some low level of discrimination against [Indians], I do not consider the available country information indicates that the applicant as an [Indian] would face serious harm or significant harm in Malaysia in the reasonably foreseeable future.

15. At the hearing, the applicant said that lots of things happened in Malaysia and he wanted more time to get information.  I have considered his request, but the applicant did not specify what information he wanted to collect and his protection visa application was lodged in May 2015 and his review application was lodged in September 2015 and his invitation to the hearing was sent five weeks prior to the date of the hearing.  In all these circumstances, I have decided to proceed to decision without giving him additional time to submit information.

16. Considering the country information and the applicant’s individual circumstances on a cumulative basis, I find there is not a real chance that in the reasonably foreseeable future he would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion).  His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

17. Considering the country information and the applicant’s individual circumstances on a cumulative basis I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.

    Conclusions

18. 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).

19. 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).

20. 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

21. The Tribunal affirms the decision not to grant the applicant a protection visa.

    David Corrigan
    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.

    …