1515402 (Refugee)

[2016] AATA 4911

1515402 (Refugee) [2016] AATA 4911 (16 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515402

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Amanda Goodier

DATE:16 August 2016

PLACE OF DECISION:  Perth

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

Statement made on 16 August 2016 at 5:28pm

CATCHWORDS

REFUGEE– protection visa – Malaysia – race – Chinese – beating and extortion by Malay villagers – did not attend hearing – vague and unsubstantiated claims – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 426A, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 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 on 24 October 2014 and the delegate refused to grant the visa on 10 October 2015.

3. On 21 July 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 August 2016.The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  An SMS reminder of the hearing was sent to his mobile telephone number on 9 and 15 August 2016.  The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.  Nor has he since contacted the Tribunal to provide any reasons or evidence to explain the non-attendance.  Since lodging his review application he has not made any contact with the Tribunal.  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.  

   RELEVANT LAW

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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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 a protection 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 the applicant 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant claims to be a citizen of Malaysia and has provided a copy of his passport to support his claim.  The Tribunal finds that the applicant is a citizen of Malaysia and that Malaysia is his country of nationality and receiving country.

10. The Tribunal is satisfied on the evidence before the Tribunal, the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s36(3).

    Assessment of Claims

11. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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.)

12. The applicant claims to fear harm returning to Malaysia as one day he was driving through a Malay village and accidently hit a cow.  The Malay villagers extorted him and he only had a few hundred with him and gave them all his money.  They told him this was not enough and the cow was worth 80,000 so he told them he would get more money and this gave him a chance to escape Malaysia.  They searched his whole body and took his identity documents and mobile phone.  When he told them he had no money left, they beat him and he had lots of injuries over his body.  If he returns to Malaysia they will continue to search for him and ask for money as well as harm him.  As they have his identity documents they will find him and beat him up.  The Malay people are very violent.  He went to the police but could not remember which one was beating him as there were too many people so the police cannot do anything.  As they are Malays they will be protected by the police.  This is racial discrimination. 

    Extortion by Villagers for hitting cow

13. The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone.  Had the applicant attended the hearing, the Tribunal would have explored his claims with him and sought further information from him on a range of details relevant to his stated claims.  The applicant’s failure to attend the hearing when requested to do so however meant the Tribunal has not been able explore his claims with him or have the ability to seek further information about the basis on which he has sought protection or test the veracity of his claims.

14. In this particular case, the applicant’s claims are unsubstantiated and without further detail amount to mere assertions. 

15. Based on the very vague and very limited evidence before it, the Tribunal is not satisfied that the applicant hit a cow, was extorted and beaten by Malay villagers or went to the police to report the extortion and beating.  The Tribunal is not satisfied that he is or ever was of adverse interest to Malay villagers or anyone else for any reason including hitting a cow.

16. Having regard to the evidence before it, the Tribunal rejects that he will face any harm at the hands of the Malay villagers, their associates or agents, or anyone else.   Having regard to all the evidence before it, the Tribunal is not satisfied, on the evidence before it, that the Malay villagers are powerful or have a network and continue to search for him or will persecute him if he returns.  Based on the evidence before it, the Tribunal does not accept that he will face any harm whatsoever from the Malay villagers, their associates or agents if he returns to Malaysia now or in the reasonably foreseeable future.

17. The Tribunal is not satisfied there is a real chance the Malay villagers, their associates or agents will harm or mistreat the applicant if he returns to Malaysia now or in the reasonably foreseeable future.

    Chinese ethnicity

18. The applicant did not attend the hearing despite being advised that the Tribunal had considered all the material before it relating to their application but was unable to make a favourable decision on that information alone.   As the applicant did not avail himself of the opportunity to attend the hearing to provide further information, the Tribunal has not been able to explore his claims further or seek additional information on the basis on which he is seeking protection or raise with him relevant country information.

19. According to the most recent DFAT report, there is some level of discrimination against ethnic Chinese in terms of accessing the state tertiary system and the civil service.  However, DFAT have assessed this as being of a low level.  DFAT state that Malaysian Chinese generally have no problems in accessing public primary or high school education. DFAT have assessed that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis.  Chinese are the second biggest ethnic group in Malaysia and there are no laws or constitutional provisions that directly discriminate against them.  Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors.[1]

    [1] DFAT Country Information Report Malaysia 19 July 2016.

20. Based on the vague claims and limited evidence before the Tribunal, it does not accept that the applicants have ever been discriminated against on the basis of their Chinese ethnicity in Malaysia.

21. The Tribunal accepts there is low level discrimination against ethnic Chinese but does not consider on the available country information that this indicates that the applicant as an ethnic Chinese Malay would face a real chance of any harm in Malaysia in the reasonably foreseeable future.  Without further information the Tribunal does not accept that the applicant will be harmed if he returns to Malaysia by any person or by the authorities or that he will not be able to obtain the protection of the relevant authorities in Malaysia to protect him from any harm feared. 

22. Considering the applicant’s individual circumstances and the country information, the Tribunal finds there is not a real chance that in the reasonably foreseeable future that he would be persecuted for reasons of his Chinese ethnicity if he returns to Malaysia. 

    Cumulative assessment

23. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Malaysia for any Convention reason (including race, religion, nationality and political opinion and membership of a particular social group). Therefore the applicant does not have a well-founded fear of persecution if he returns to Malaysia now or in the reasonably foreseeable future.

    Complementary protection

24. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, 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.

25. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ below, the evidence does not indicate 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; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

26. For the reasons set out above and considering the applicant’s individual circumstances, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm from the Malay villagers or from any other person because he hit a cow.

27. As the applicant has failed to provide sufficient detail or supporting evidence, and has failed to attend a hearing, the Tribunal is unable to be satisfied on the evidence before it that 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 for reasons of his Chinese Malay ethnicity.

    Cumulative assessment

28. Considering the applicant’s individual circumstances and the country information cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.

    Conclusion

29. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

30. 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).

31. 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

32. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Amanda Goodier
    Member