1513312 (Refugee)

[2016] AATA 3457

1513312 (Refugee) [2016] AATA 3457 (19 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513312

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Frances Simmons

DATE:19 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 19 February 2016 at 12:42pm

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] September 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are citizens of Malaysia.  They arrived in Australia [in] February 2014 holding [temporary] visas. They applied for protection visas [in] January 2015. The first named [applicant] claims to be owed protection. The second named [applicant] is the spouse of the first named applicant. She did not make her claims for protection, but applied for the visa as a member of the family unit of the first named applicant. The delegate was not satisfied that the first named applicant was a person in respect of whom Australia has protection visa obligations and, accordingly, refused to grant him a protection visa. As the delegate refused to grant a protection visa to the first named applicant, the delegate also refused to grant a protection visa to the second named applicant.

3. On 29 January 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 18 February 2016. The applicants were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. The applicants did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Nor have they contacted the tribunal in relation to non-attendance at the hearing.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.  

8. 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’).

9. The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a). 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

10. 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

11. For the following reasons, I have concluded that the decision under review should be affirmed.

12. I accept, on the basis of the copies of the applicants’ passports that appear on the Tribunal  file, that the applicants are Malaysian citizens. I have assessed their claims against Malaysia as the receiving country.

13. The mere fact that a person claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that Australia has protection obligations to the applicant. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

14. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70; and, and, in the context of an applicant’s failure to attend a hearing before the Tribunal, BZADA v MIC and RRT [2013] FCA 1062 at [21]-[22]).

15. The first named applicant’s claims, as contained in his protection visa application, can be summarised as follows.

    a.The applicant was born in [year] in Malaysia. He claims that as a Malaysian of Chinese ethnicity he was persecuted by local Malays and forced to wander overseas. He claims that he grew up in Malaysia but because he was of Chinese ethnicity he was bullied and discriminated against at school.

    b.The applicant claims that experienced discrimination in employment because of his ethnicity.  After finding low paid employment at a Chinese [company], he was subsequently laid off. He said the company did not dare lay off Malays, so he was laid off because he was Chinese. He continued job hunting but the economic situation was stagnant and he experienced difficulty finding a job because of the discrimination against Malaysians of Chinese ethnicity. He has said the Malaysia government blatantly discriminates against those of Chinese ethnicity, trying every means to deprive them of their work rights.

    c.The applicant has said that he enjoys living in Australia where he does not experience discrimination. He has attended church, which makes him feel like life has become more meaningful. He has thought about returning to Malaysia however the persecuting of Chinese Christians has become more serious. Chinese Christians would be beaten by local Muslims when attending church.

    d.Christians had already been persecuted in Malaysia and the Chinese have also been oppressed. Therefore, Chinese Christians would have to struggle to live in Malaysia as they are always oppressed and persecuted. He claims that in order to avoid being persecuted he could not go to church in Malaysia, which really upsets him.

16. The applicant did not attend an interview with the Department to discuss his claims to be owed protection.

17. I consider the evidence provided by the applicant about the reasons that he fears returning to Malaysia is vague and lacking in detail. When the applicants were invited to attend a hearing they were put on notice that the Tribunal had considered the material before it, but could not make a favourable decision on this information alone. There is a lack of information and detail about many aspects of the applicant’s claims including: what exactly the applicant is referring to when he says he was persecuted by local Malays; the applicant’s employment in Malaysia (his protection visa application refers to the fact he worked as [occupation] at a [business] between 2009 and 2013, while his statement of claims refers to his work at a Chinese [company]); how and when the applicant became a Christian; how and when he practices his faith; whether he was a practising Christian in Malaysia and, if he was, whether he was ever harmed because of his religion; and, on what basis he believes he would be subject to serious harm or significant because of his religious and ethnic identity if he returned to Malaysia.

18. I note that while the applicant has complained of difficulty obtaining in employment in Malaysia in the past and claimed he was the victim of discrimination against ethnic Chinese, given the limited information about the applicant’s experiences as an ethnic Chinese in Malaysia, I cannot not be satisfied that the applicant was ever subject to serious harm  as that term is defined in in 5J of the Act or significant harm as that term is set out in or significant harm as it is defined in s.36(2A) and s.5(1) of the Act for reasons of his ethnicity.  Further, while the applicant has claimed that he is afraid he will suffer persecution in Malaysia because he is a Chinese Christian, his statement does not indicate that the applicant personally harmed in the past in Malaysia because of his religious beliefs or activities. His statement contains very limited information about his religious beliefs and practices: it does not indicate when he became a Christian, whether he was in practising Christian in Malaysia, and nor does it provide any details about the church he says he has been attending in Australia.

19. If the applicant had attended the hearing, I would have discussed with him that, according to a report published by DFAT on 3 December 2014, ethnic Chinese are the second largest ethnic group in Malaysia, make up a high percentage of professional and educated classes, freely participate in political life in Malaysia, and generally had no problem accessing public primary school or high school education. I would have invited the applicant to comment on DFAT’s assessment while ethnic Chinese may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service, generally they do not experience discrimination or violence on a day-to-day basis.[1]  

    [1] DFAT, Country Report – Malaysia , 3 December 2014, p.8-9.

20. I would have also invited the applicant to comment on DFAT’s assessment that Christians (who make up 10 per cent of the population of Malaysia) are generally free to practice their religion although a ban on their use of the word Allah (Arabic for God) has occasionally been enforced by the law enforcement authorities. However, despite these incidents DFAT assesses that Malaysian Christians are generally able to practice their religion without interference and do not face discrimination on a day to day basis although they do occasionally face societal violence.[2]

    [2] DFAT, Country Report – Malaysia , 3 December 2014,  p.11.

21. On the very limited evidence before me, I cannot be satisfied that the applicant is a Christian of any denomination. Because I am not satisfied the applicant is a Christian of any denomination, it follows that I do not accept that he will be persecuted because he is a Chinese Christian if he returns to Malaysia or that, in order to avoid persecution, he would not be able to attend church in Malaysia.  I cannot be satisfied that he has suffered harm of any type in Malaysia because of his religion in the past or that there is a real chance that he would suffer harm of any type for reasons of his religion if he returned to Malaysia.

22. On the very limited evidence before me and, having had regard to DFAT’s assessment about the treatment of ethnic Chinese in Malaysia, even accepting that the applicant is of the Chinese ethnicity, I am not satisfied that there is a real chance that any discrimination that he may experience if he returns to Malaysia will amount to serious harm as that term is defined in the Act or significant harm as it is defined in s.36(2A) and s.5(1) of the Act. 

23. On the very limited evidence before me, I cannot be satisfied that the applicant there is a real chance that, if he returned to Malaysia, the applicant would suffer serious harm or significant harm for reasons for his ethnicity and/or his claimed religion or for any other reason.

24. Having regard to the evidence before me, I do not accept that the applicant faces a real chance of serious harm for any reason set out in s5J of the Act. Consequently, I am not satisfied that the applicant has a well-founded fear of persecution as set out in s5J of the Act. I find that the applicant is not a refugee within the meaning of s5H of the Act. 

25. On the evidence before me, I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia.

26. As noted above, the second named applicant has not made her own claims for protection under s.36(2)(a) or s.36(2)(aa)  but was included in the first named applicant’s application for a protection visa as a member of the family unit. On the evidence before me, I am not satisfied she satisfies the criteria set out in s.36(2)(a) or s36(2)(aa).

    CONCLUSION

27. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

28. The Tribunal affirms the decision not to grant the applicants protection visas.

    Frances Simmons
    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.

    …