1513199 (Refugee)

1513199 (Refugee) [2016] AATA 4640 (18 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513199
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Suhad Kamand
DATE:18 October 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 October 2016 at 4:44pm
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

The applicant, a female national of Malaysia, entered Australia [in] January 2015 holding and Electronic Travel Authority [visa]. That visa ceased [in] April 2015. The applicant has not departed Australia since that entry. She applied for the Protection visa the subject of this review [in] June 2015. A delegate of the Minister for Immigration refused to grant that visa [in] June 2015 and the applicant sought this Tribunal’s review of that decision.
On the basis of all the evidence before it and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.
Relevant law has been included at Appendix 1.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Generally, the issue for the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations.
The applicant was born in Malaysia in [year]. She is a national of Malaysia and of no other country.
Her express claims and those arising on the evidence are that she faces a real chance of serious and/or significant harm in Malaysia in connection with threats made to her by her [Relative 1].
Delegate’s decision
The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or under complementary protection. The applicant provided the Tribunal with a copy of that decision record.
Issues before the Tribunal
The Tribunal must generally assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm if she returns to Malaysia. If the Tribunal is not satisfied that she is a refugee, it must then consider whether she is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that she faces a real risk of significant harm in Malaysia for any of the reasons claimed or arising on the evidence.
The Tribunal’s assessment is informed by a range of sources including: the Department’s file relating to the applicant which includes: her Protection visa application form signed [in] June 2015. Document’s provided in support comprise only identity documents for the applicant. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that the department wrote to her requesting her to contact the department to arrange an interview, but that no such contact was made by the applicant prior to the department finalising its decision. The Tribunal’s assessment is also informed by its detailed exploration of the applicant’s claims when she appeared in person before it on 28 September 2016 (2016 Appearance). During that appearance the applicant communicated with the Tribunal through an interpreter in the English and Bahasa Malaysian languages. The Tribunal’s considerations are informed by all of the above, as well as other sources, including independent sources, referenced where relevant, below.
Assessment of the applicant’s claimed circumstances – credibility
Having had the opportunity to: discuss the applicant’s claims and evidence with her during her Tribunal appearance; and reflect on that evidence in the context of all the evidence before it, the Tribunal has concerns regarding central aspects of the claims and evidence advanced. While those concerns are not singularly determinative of the claims made overall, cumulatively, they leave the Tribunal unable to be satisfied that the applicant faces a real chance of serious or significant harm in Malaysia in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence.
The applicant’s circumstances in Malaysia, generally, are set out in her Protection visa application form to the following effect: she was born in [year] in Malaysia where she is a citizen; her mother and father are also Malaysia and citizens; she has never been a citizen of any other country; she identifies her religion as Muslim; she has been married since [March] 2001; she has her mother, father, [sibling], husband and [children] born between [years] residing in Malaysia[1] ; she departed Malaysia for Australia legally [in] March 2015 holding a Malaysian passport issued in [2015] and expiring in [2020]; she has previously holidayed in [country] in December 2007 and in [country] in March 2007; she identifies only one prior address that she has lived in in Malaysia, being in [location][2]. Regarding her past employment she identifies herself as an “[occupation]” in a private [company] in Malaysia from 2007 until “current”, and as an [occupation] at [company] in Malaysia between 1992 and 1996[3].
[1] folio 35 and 9, CLF [file number]
[2] folio 26
[3] folio 24
She writes the following about why she left Malaysia:
“last year I was fighting with my [Relative 1]. As a result of this fight, I almost hurt. My [Relative 1] threatened to kill me. He once told me, will find where I was. From that event, I decided to flee to Australia”[4].
[4] folio 21
Regarding what she thinks will happen if she returns to Malaysia she states “when I return of course my [Relative 1] will find me and hurt or kill me”[5]. Regarding whether she has been harmed in the past she states “every time my [Relative 1] threatened me”[6]. She states that she tried “to seek help but everybody can do nothing because this is a family matter”, and that she did not move to another part of the country because “if I move my [Relative 1] will try to kill me”[7]. She states that “if I return to my country the [Relative 1] will kill me because he ever said like that”[8].
[5] folio 21
[6] folio 21
[7] folio 20
[8] folio 19
Regarding state protection in Malaysia she says “police cannot involve in the case, this is family matter” and that she cannot relocate within Malaysia because her [Relative 1] will find her and her life will be in danger.
In support of the review application a written submission was provided to the effect that the applicant was not aware of the department’s correspondence inviting her to make contact to organise an interview. Additional text to the following effect is included in that correspondence: “I’d be more than happy to close an existing account down to lower my liabilities but personally I think my situation is extremely good, all things considered, and I do lead to very comfortable lifestyle. Please spend a few moments looking at the additional information attached with my appeal. In the meantime, I look forward to your response, hopefully with better news than last time, and to a future working relationship as my main credit card provider. If, in the meantime you require any additional info please get back to me” [9]. During her 2016 appearance the Tribunal asked the applicant what this means. She said that she does not know or why it has been submitted to the Tribunal.
[9] Folio 17 tribunal file 1513199
The Tribunal also asked the applicant to explain the content and purpose of the photos submitted to the Tribunal at folios 15 and 16 of the Tribunal file. She said that these are pictures of her [Relative 1]. They simply portray him on his own in casual poses.
At the commencement of the her 2016 appearance the Tribunal explained to the applicant. in summary, the relevant law regarding Australia’s protection obligations. After that explanation the applicant offered that “now it is ok” and her family might be able to accept her. She said she previously had problems with her [Relative 1], who is [details of relationship], but it might be ok now. When asked if she could elaborate on the problems she had with her [Relative 1] she responded that there was a family problem and he could not accept her. She added that she does not really know what the problem was but he did not accept her.
The Tribunal explored with the applicant her general family circumstances in Malaysia. She offered that her husband and [children] continue to live in Malaysia. She said that her husband has temporarily moved out of the house they shared together when she was in [Malaysia]. However, he still remains married to the [applicant]. When asked if her husband [deleted] was part of her reason for leaving Malaysia she responded that it was not. She said that she maintains a good relationship with her husband and would live with her husband and [children] should she return to Malaysia.
In addition to her husband and children she has one [sibling] and her parents residing in Malaysia with whom she maintains contact.
When asked about why she came to Australia she said that she wanted to be away from her [Relative 1]. When asked if she had assistance completing her Protection visa application form she responded that her English is not good so a friend helped her. That friend was fluent in the Malaysian and English languages. She said that her friend read back to her the content of her completed Protection visa application form and the applicant did not detect any errors in that information. Notwithstanding this, multiple aspects of her oral evidence to the Tribunal did not accord with or support her written claims, detailed further below.
Regarding her entry to and time in Australia the applicant said that she entered [in] January 2015 and has been working at a [workplace] since soon after her entry. She has sent some of her earnings to her family in Malaysia and has also used some of her income to pay of her debts. When asked to elaborate on her debts she referred to debts in both Malaysia and Australia. In Malaysia she owes around MYR[amount] for her house and car loan. These loans are in her own name as her home in Malaysia is registered only in her name. She said that she ordinarily lives in that home together with her husband and children and intends to do so again should she return to Malaysia. She said she has around [number] years to repay this debt and was able to make the repayments on the income she made in Malaysia. She did not identify these debts as contributing to a real chance of serious or significant harm in Malaysia.
Regarding her debts in Australia she referred to a fine in the order of $[amount] for [an offence], and a [mobile] account in the order of $200 per month which she pays.
Regarding her claims in respect of her [Relative 1] she said that she first started having problems with him around seven or eight years after she married her husband. She said she married in 2001, so the problems with her [Relative 1] started in around 2009. When asked to elaborate on the nature of the problems she has had with her [Relative 1] she was expressly hesitant, saying that she does not want to repeat what he said. When asked if her [Relative 1] ever harmed her physically or caused anyone else to do so she responded that he did not harm her body, only her mind. When asked if she can give any more information about how he did this, or give any examples of how he harmed her in the past she responded that she finds it too hard to talk about. She said that the harm she fears is mental harm. When asked what she thinks will happen if she returns to Malaysia she said she does not know.
When asked again to explain how her [Relative 1] has harmed her mentally and whether he has ever made any threats to harm her physically she offered only that he does not seem to want her in the family and he says bad things about her to other people, including her family. She did not provide any examples or elaboration regarding what he says. When asked how her husband reacts to the bad things his brother says in respect of the applicant she responded that he does not believe what he says about her. When asked if her [Relative 1] falsely accuses her of conduct or behaviour considered unacceptable in her family she said that he says she did something that she did not do.
The Tribunal asked if she knows why her [Relative 1] has behaved this way towards her. She responded that she does not know and maybe he did not like her. She could not explain why this behaviour emerged some seven years after she married her husband. When asked how often she would have to interact with him if she returns to Malaysia she said she used to see him very often and he was always unpleasant. His unpleasantness was always verbal and not physical.
The Tribunal asked if her [Relative 1] has ever threatened to harm her. She responded that she is not sure but she has never personally heard him make such a threat. This does not accord with her written claims in which she claims to have been directly threatened with death by her [Relative 1] while in Malaysia. In response to this she offered that she has forgotten everything since she came to Australia. The Tribunal asked her to clarify whether she is saying that she has no recollection of her [Relative 1] saying he will hurt, beat or kill her. She responded only that she has been working here and that is all. Her oral evidence to the Tribunal did not support her written claims to fear physical harm and death as a result of direct threats made by her [Relative 1] while she was in Malaysia.
The Tribunal asked whether she has heard anything about her [Relative 1] in the time she has been in Australia, a period of around one and a half years. She responded that she has not heard anything about him despite maintaining contact with her husband and parents in Malaysia. She said that he husband has not told her anything about his brother in the time she has been here.
When asked if she has fears beyond her [Relative 1] continuing to be verbally unpleasant on her return to Malaysia she responded “maybe”, but she did not elaborate further.
When asked if she could move somewhere in Malaysia where she would not have to have contact with her [Relative 1] she responded that it will be difficult because she won’t be working. The Tribunal asked why she would not be working should she return to Malaysia given her extensive work history both in Malaysia and Australia. In response she offered that she is [age] and it will be hard to get work at her age. However, given her recent and historical work history in Malaysia and Australia the Tribunal is not satisfied that the applicant will not be able to source work and income on her return to Malaysia.
The Tribunal explained to the applicant that her oral evidence to the Tribunal is lacking in detail and based on what she has described of her [Relative 1]’s behaviour towards her it is difficult to find that she faces a real chance of harm rising to the level of serious and/or significant harm in connection with him should she return to Malaysia. The Tribunal also discussed with the applicant its concern that her oral evidence to the Tribunal does not appear to accord with her written claims in which she describes her [Relative 1] making express threats to kill and harm her, claims she has said in her oral evidence to the Tribunal she has no recollection of. In response she again offered that she has been in Australia almost two years and she cannot recall this detail. However, as put to the applicant, she has only been in Australia since January 2015 and has claimed in writing that her reason for coming to Australia was to flee the threat of death and harm expressly made against her by her [Relative 1] in Malaysia. The Tribunal expects that she would recall such details if they in fact occurred, and considers her demonstrated failure to recall those details, in the absence of any evidence regarding the applicant’s capacity to recall information, to be of significant concern.
Having considered all the evidence advanced in its totality, the Tribunal finds the claims and evidence before it to be problematic and unconvincing. Based on significant, unexplained discrepancies between the applicant’s written claims and oral evidence to the Tribunal the Tribunal does not accept as true the written claims made to the effect that the applicant’s [Relative 1] expressly threatened to kill the applicant in the context of a fight they had, or that he has ever threatened to find her and harm her wherever she is in Malaysia. Regarding her oral evidence that her [Relative 1] has been verbally insulting towards her, while the Tribunal accepts that there is some truth in those claims, the applicant’s evidence on those matters was lacking in detail and on the evidence before it the Tribunal is not satisfied that the applicant faces, in connection with her [Relative 1] or anyone else in Malaysia, a real chance of harm rising to the level of serious or significant harm as contemplated by the relevant law in the reasonably foreseeable future.

On the totality of the evidence before it and based on the cumulative considerations, reasoning, findings and concerns above, the Tribunal is not satisfied that the applicant faces in Malaysia, in the reasonably foreseeable future, a real chance of serious or significant harm as contemplated by the relevant law, for any of the reasons claims or arising on the evidence.
Conclusions
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.
Suhad Kamand
Member

ANNEXURE 1 - 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 4640

18 October 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice