1514931 (Refugee)

1514931 (Refugee) [2016] AATA 3679 (23 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514931
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Sydelle Muling
DATE:23 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 March 2016 at 1:15pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Malaysia, applied for the visas [in] April 2015. The delegate refused to grant the visa [in] October 2015.
The applicants appeared before the Tribunal on 17 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
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
Only the first named applicant has made specific claims under the Refugee Convention. The applicant wife and children are relying on thier membership of his family. For convenience the Tribunal will therefore refer to the first named applicant as the applicant.
The applicant claims to be a citizen of Malaysia who was born in [his home town in] Melaka, in Malaysia on [date]. According to his protection visa application, the applicant resided at [an address in] [District 1] from [birth] to [2009]. From [2009] to [December] 2014 he lived at [another address in] [District 1]. The applicant completed high school and one year of an Advanced Diploma in [subject]. He is fluent in Tamil, English and Malay. The applicant was employed as a [occupation] for [a company] from June 2003 to July 2011. He was the owner of a [different company] in [District 1] from February 2012 to December 2013 and was [a manager] of a [further] business in [District 1] from December 2013 to November 2014. The applicant was married [in] 2009 in [a town in] Negeri Sembilan. He departed Malaysia legally [in] December 2014. The applicant’s wife and children departed Malaysia [in] March 2015. The applicant’s [siblings] are residing in Malaysia.
The applicant presented his claims in his protection visa application [in] April 2015 (folios 2 to 118 of the Department file [number]) and at his Tribunal hearing on 17 March 2016.
The applicant claimed the reason why he left his country was because of an incident which happened to his father, which then affected and risked his life. He claimed his father worked as a [vehicle]driver for a [services] company and he had an assistant. His father’s assistant was from [another city] so he had to stay with his father at his father’s friend’s house one Saturday as they had a [job] on Monday and Sunday was a holiday. The applicant claimed on the Saturday night ([on a date in] July 2011) his father, his father’s assistant and a few friends had a small party. During the party, his father’s assistant was high on alcohol and he sexually harassed a girl at the party which resulted in a huge argument and fight between the girl’s partner and his father’s assistant. The applicant claimed his father’s assistant was bashed up by the others at the party. He claimed it was almost Sunday morning and when everyone was sleeping, his father’s assistant, who was seriously injured, was [in his father’s home] and he suffocated and passed away. His father found his assistant when he went [into the room]. His father immediately went to the police station to make a report and the police then went to the house and confirmed that the assistant was dead. The police then took his father to the police station and put him on hold for further investigation.
The applicant claimed that the family of his father’s assistant was notified of the assistant’s death and were very upset and angry towards his father, thinking that the death of their son was because of his father. Due to this they wanted to take revenge towards his father, however they were unable to do so because his father was in police custody. Instead they tried to attack the applicant by sending people to kill him but he escaped. The applicant claimed that he had to shift to a different address because he was afraid for his family’s safety, however somehow the people managed to locate his new house and when he was away for work, his wife would notice that there were cars full of people watching his house. Again, because of safety, he had to move to a new place.
The applicant claimed that for two years he and his family lived a peaceful life without any problems. Then one day when he was driving his [vehicle] to work, all of a sudden there was a car trying to knock him down. He claimed that he did not stop but continued driving his [vehicle] to work. He noticed that the car followed him to his company and then turned back and left. The applicant claimed after two or three days he received a call from a private number and an unknown guy said “we finally found you and one day you will be killed”. He did not answer anything but just hung up. He claimed he did not want to make a police report because his wife had gone through so much pain and fear. He decided that these people will never let go of him and his family and that if he stayed with his wife and children he would endanger their lives so he decided to study abroad and apply for citizenship and once he had completed that he would bring his family to live with him. He arranged for his wife and children to live with his in-laws and he left Malaysia.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing the applicant claimed that he fears returning to Malaysia because somebody threatened to kill him. When asked who he fears will harm him, the applicant stated the parents of the person who passed away. In response to the Tribunal’s question as to why these people would want to harm him, the applicant stated because his father’s assistant was their only son and they are disappointed and they think that their son died because of his father.
The Tribunal has serious doubts about the credibility of the applicant’s claims regarding the death of his father’s assistant and the problems he claimed to have experienced from the family of his father’ assistant.
Firstly, the Tribunal asked the applicant the name of his father’s assistant who was killed and he stated that he had forgotten. He claimed he could not remember this person’s name. As the Tribunal put to the applicant in the hearing, it finds it somewhat implausible that the applicant would not remember the name of the person who allegedly worked for his father as his assistant for a few months and more importantly, his father was held responsible for killing. The Tribunal also has difficulty accepting that if the applicant had allegedly been pursued by the family of this person for several years, as his evidence suggests, that he would not be able to recall the name of this person.
Secondly, the Tribunal found the applicant’s evidence regarding what happened to his father after the alleged death of his father’s assistant vague and lacking in detail. The applicant’s evidence in the hearing was that his father is currently in jail and that he received a term of imprisonment of [number] years. However, the applicant was unable to tell the Tribunal what offence/s his father was charged and convicted of. When asked what the charges were against his father, the applicant stated because he was the person who brought him. He subsequently stated bashing somebody getting together as a gang. The Tribunal found the applicant’s evidence regarding the offence which his father was allegedly found guilty of to be vague and unconvincing.
Thirdly, the Tribunal notes a number of discrepancies in the applicant’s account in the hearing of what happened to him after his father’s assistant passed away as compared to his statement attached to his protection visa application. As the Tribunal noted in the hearing, in his statement attached to his protection visa application, he claimed the first problem he experienced after his father’s assistant died, was when they tried to attack him by sending people to kill him but he escaped. Instead, the applicant claimed in the hearing that a few weeks after his father’s assistant died, a [vehicle] which looked similar to his was stopped and the driver was asked his name. As the Tribunal put to the applicant, it does not accept that his claim about a different [vehicle] to his being driven by someone else being stopped is the same or even similar to his original claim of an attempted attack on him and him escaping.
The Tribunal also notes that the applicant claimed in the statement attached to his protection visa application, after the attempted attack on him which he escaped, he moved to another house and after relocating, his wife noticed cars full of people watching their house. However, in the hearing the applicant claimed that his wife saw the cars outside their home prior to them shifting and then when they went to his wife’s parents place, she also saw cars outside there.
Further, in the applicant’s statement attached to his protection visa application, he claimed that after the incident when a car tried to knock his [vehicle] of the road, he received a call two or three days later in which the caller threatened to kill him. Yet, in the hearing the applicant claimed that nothing happened after the [vehicle] incident, despite the Tribunal asking him repeatedly if anything else happened.
Fourthly, the Tribunal has had regard to the applicant’s protection visa application in which the applicant provided his residential details in Malaysia. As the Tribunal noted in the hearing, the applicant provided two addresses, one in [District 1] where he resided from birth until [2009] and the other also in [District 1] where he lived from [2009] until [a date in] December 2014, which is when the applicant left Malaysia. The Tribunal finds this inconsistent with the applicant’s evidence, as discussed above, that he moved twice after the incident when his father’s assistant was killed on [the day in] July 2011. The Tribunal has considered the applicant’s response that he realised yesterday that this was a mistake and he had written the wrong address but finds this unconvincing. Instead, as the Tribunal put to the applicant, it places more weight on his evidence in his protection visa application regarding his previous addresses and finds the applicant only lived at two addresses in Malaysia.
The Tribunal also notes the applicant’s evidence in the hearing that nothing has happened to his [siblings] in Malaysia since this alleged incident in July 2011. As the Tribunal put to the applicant in the hearing, it finds it implausible that if his father’s assistant had in fact died and his family held his father responsible and wanted revenge, that they would only focus on him and not take their revenge on any of his other siblings. The Tribunal has considered the applicant’s response that because the assistant’s family was from [another city] and he drove through their area for work, so they targeted him. However, the Tribunal notes according to the applicant’s evidence these people were allegedly watching his home so in these circumstances the Tribunal does not accept that the applicant was targeted because he was more accessible, as compared to his siblings.
Given the above, the Tribunal does not find the applicant’s claims credible and does not accept that the applicant’s father’s assistant died as a result of being bashed by others in attendance at a party at his father’s friend’s house. It therefore follows that the Tribunal does not accept that the applicant’s father was charged, convicted and sentenced to [number] years imprisonment in relation to his assistant’s death. Nor does the Tribunal accept that the applicant’s father’s assistant’s family wanted to take revenge from his father but as they were unable to because he was in custody, they targeted the applicant. As such, the Tribunal does not accept that they tried to attack the applicant but he escaped or that they stopped a [vehicle] that looked like the applicant’s and asked about him. The Tribunal also does not accept that there were any cars full of people watching the applicant’s home or his in-law’s home. It does not accept that several years later the applicant was followed by a car which tried to knock his [vehicle] of the road or that he received any threatening call after this incident. The Tribunal does not accept that after the applicant’s departure from Malaysia the applicant wife was followed from the shops to her home by a car.
As the Tribunal does not accept the applicant’s claims regarding the problems he allegedly had from the family of his deceased father’s assistant are credible, it does not accept that if the applicant returns to Malaysia, he will have problems or be harmed, including possibly being killed, by the family and friends of his father’s assistant. As such, the Tribunal does not accept that the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, from these people in revenge for their family member’s death. The Tribunal finds the applicant does not have a well-founded fear of persecution as required by s.5J of the Act and therefore finds the applicant is not a refugee within the meaning of s.5H.
As the Tribunal does not accept that the applicant is a refugee as defined in the Act, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

Having regard to the definition of significant harm in s.36(2A) of the Act as set out in the attachment of this decision, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in Malaysia will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept the applicant’s claims regarding his father’s assistant’s death and his father’s assistant’s family’s desire for revenge are credible. Therefore, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk he will suffer significant harm.
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
The Tribunal affirms the decision not to grant the applicants protection visas.
Sydelle Muling
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.
…

[2016] AATA 3679

23 March 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction