1513346 (Refugee)

[2016] AATA 3976

1513346 (Refugee) [2016] AATA 3976 (17 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513346

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rachel Westaway

DATE:17 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 17 June 2016 at 2:57pm

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. The delegate refused to grant the visa on the basis that the applicant’s claims were vague and lacked detail. He did not attend the Department interview and the delegate found the applicants claims not to be credible.

   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 issue in this case is the credibility of the applicant’s claims. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. The applicant arrived in Australia on a [temporary] visa [in] February 2015. His visa ceased [in] May 2015 and he remained in Australia unlawfully. He applied for the visa the subject of this review on 22 May 2015.

11. The applicant made the following claims in his protection visa application.

    ·He claims to have left Malaysia because he was involved in a gang. He claims when he tried to move away from the gang, they followed him everywhere and when they heard he was getting married they scared his girlfriend and stopped his engagement. He claims they followed him everywhere.

    ·He claims the gang members tied his hands and beat him in a dark room. They attacked him many times.

    ·He claims he did not seek help as no one helps in gang related crimes. He claims that the gangs have friends in the police station.

    ·He claims he could not relocate because the gang people will find him everywhere.

    ·He believes the gang people will kill him.

12. The applicant did not avail himself of an opportunity to discuss his claims with the delegate and provide further information. The delegate refused the visa.

    Country of Reference

13. The Applicant claims to be a Malaysian national.  Based on the information before the Tribunal on the Department and Tribunal file, the Tribunal accepts this and finds that Malaysia is his country of nationality and his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Country Research

14. In 2013, police identified 49 illegal gangs nationwide, with nearly 40,000 known members. More than 70 per cent of felons are ethnic Indians, who make up just 7 per cent of Malaysia’s population. Though small in number, they have been linked to a wide array of crimes - such as armed robberies, drug and prostitution rings, loan-sharking, gambling and extortion rackets, and even contract killings. In a recent online interview, 101 East spoke exclusively with a senior gang member, who reveals how these criminal organizations provide protection and work opportunities for many Malay indians who live in poverty[1]. The gangs prey on vulnerable youngsters with the lure of fast money and bonds of brotherhood.

    [1] accessed 15 June 2016

15. Many of them worked in Malaysia's rubber plantations after they migrated during British colonial rule. For generations, the estates provided thousands of Indian families with housing, jobs and schools. But that all changed in the 1970s when new economic policies saw private companies take over the estates, replacing rubber with oil palm and hiring cheaper foreign labour. Today, within one generation, most estate Indians have been forced into urban centres, leaving them unskilled and trapped in poverty.

16. While the government and the opposition trade statistics about the true extent of crime in Malaysia, the perception among locals is that the country has undoubtedly become a more dangerous place in recent years.

17. The Department of Foreign Affairs and Trade (DFAT)’s country report on Malaysia, published in December 2014, identifies corruption among the Royal Malaysian Police (RMP) as a concern. The level of engagement in corruption of individual RMP officers is identified as a factor in determining the quality of responses to crime. Nevertheless, in response to a Royal Commission into the RMP in 2005 that identified ‘a perception of widespread corruption’, the government implemented reforms and established compliance units within the RMP. Disciplinary action was taken against corrupt officers. DFAT notes that, in general, ‘[c]redible local and international sources consider the RMP to be a professional and effective police force’. Sources indicate that there is some corruption in Malaysia’s police force; however, there are mechanisms in place to address the issue, and disciplinary action has been taken against offending officers.

    FINDINGS AND REASONS

18. The applicant did not attend the hearing and he did not respond to the hearing invitation. The Tribunal has not received any further correspondence from the applicant at the time of making this decision. The applicant did not provide medical documentation or submissions and has not engaged in the Tribunal processes. Therefore, the Tribunal has decided pursuant to s.426A of the Act to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it. 

19. The decision maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any of the allegations made by and applicant[2].

    [2] MIEA V Gui (1197) 191 CLR 559 at 596; Nagalingharn v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70; Randhawa v MIEA (1994) 52 FCR 437 at 451.

20. The Tribunal does not accept that the applicant was involved in a gang in Malaysia. He provided such minimal detail in his application and did not avail himself of an opportunity to provide further information to the Department or the Tribunal in order to assist the decision making in making a positive finding. For example, he did not provide any details about the name of the gang or how he became involved or details about the gang that would assist in supporting his claims. Due to the limited information provided to the Tribunal, the Tribunal does not accept the applicant was involved in a gang.

21. Given the finding above, the Tribunal therefore does not accept that the applicant tried to  move away from the gang, or that they followed him everywhere and when they heard he was getting married they scared his girlfriend and stopped his engagement. The limited detail provided was vague. The Tribunal would expect that the applicant may have been able to request his girlfriend and family to assist in corroborating his claims. Such limited and vague claims with minimal detail lead the Tribunal to find that the applicant is not a credible witness.

22. The Tribunal has taken into consideration country information regarding gangs in Malaysia and the ability to seek police protection. Whilst the information supports the view that gangs do exist in Malaysia, the limited and vague claims made by the applicant and his inability to engage in the Tribunal process support the Tribunal’s finding that the claims made by the applicant lack credibility. As such, the Tribunal does not accept that gang members tied the applicant’s hands and beat him in a dark room or that they attacked him many times.

23. Based on independent country information, the Tribunal does not accept that the applicant could not seek assistant and protection by the police because the gangs have friends in the police station.

24. Given all of the findings above, the Tribunal finds that the applicant’s claims that gang members will find him everywhere and will kill him not to be credible.

25. The Tribunal has considered the applicant’s current migration history, the claims made in his visa application, the lack of detail and the vague claims and the independent country research before the Tribunal and finds that the applicant does not face a real chance of persecution for any reason convention or non-convention related.

26. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for accepting that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there would be any real risk of him suffering significant harm now or in the reasonably foreseeable future.

    CONCLUDING PARAGRAPHS

27. 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).

28. 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).

29. 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

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

    Rachel Westaway
    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.

    …