1515542 (Refugee)

1515542 (Refugee) [2016] AATA 3963 (7 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1515542
COUNTRY OF REFERENCE: Malaysia
MEMBER:Chris Thwaites
DATE:7 June 2016
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 June 2016 at 10:11am
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] July 2015.
[In] November 2015 the delegate refused to grant the visa.
On 14 November 2015 the applicant applied to the Tribunal for review of that decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provided to the Tribunal by the applicant.
The applicant’s written reasons for claiming protection are contained in his visa application form. In that form the applicant indicates the reasons he left his country was because his ex-boss wanted to kill him. The applicant indicates he experienced harm in his country and states that he was a gangster in Malaysia and helped a person named [Mr A] to work and do illegal things. He helped in a lot of no good business. He was also asked to sell drugs. The applicant states he couldn’t take that job and tried to quit. He ran to KL but was found and beaten, and his family was threatened. The applicant indicates he fears he will die if he returns to his country. The applicant states he knows him [[Mr A]] too much and he will find the applicant no matter where he runs. He can find the applicant and kill him because he is rich and has the power to do no good things. The applicant indicates he does not think the authorities in his country can and will protect him if he goes back, and states the police in Malaysia all want money. The applicant states he is poor and cannot give any money to protect himself, and if he goes back he will get found and will die.
As noted above, [in] November 2015 the delegate refused to grant the applicant a protection visa. The delegate’s decision record indicates that [in] August 2015 the applicant was informed in writing that his application may be decided without requesting further information from him, and was given the opportunity to contact the Department to arrange an interview to discuss his claims. The delegate’s decision record indicates the applicant did not take the opportunity to request an interview and therefore the delegate’s decision was based on the information before him.
After considering a number of country information reports, including the Department of Foreign Affairs and Trade Country Report Malaysia, 3 December 2014, the delegate considered that the information showed that the relevant authorities, including the Royal Malaysia Police (RMP) and judiciary are reasonably effective in combatting organised crime and protecting persons within the jurisdiction from criminal harm. While the delegate noted there is some information in relation to corruption within the system, there was nothing before him to indicate the State would be unable or unwilling to protect the applicant in his particular circumstances.
The delegate noted the applicant had outlined his situation in minimal detail and with no supporting documentation. On the information before him, the delegate found the applicant would receive effective protection from the RMP and judiciary in Malaysia against any threats he faces from [Mr A]. The delegate found the receiving State, or a party or organisation that controls the State or a relevant part of the State or a substantial part of the territory of the relevant State, could provide protection against persecution to the applicant. The delegate also considered that the State, or the relevant party or organisation, is willing and able to offer such protection. The delegate found the applicant can access the protection, the protection is durable and 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.
The delegate was satisfied that there were effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. Therefore the delegate found the applicant was not a refugee as defined in section 5H of the Act and did not satisfy the criteria in s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real chance he will suffer significant harm. Therefore the delegate found the applicant was not person in respect of whom Australia had protection obligations under s.36(2)(aa). Therefore the delegate refused to grant the applicant a protection visa.
As noted above, on 14 November 2015 the applicant applied to the Tribunal for review of that decision.
On 19 November 2015 the applicant provided a document to the Tribunal titled Written Argument for Review. In that document the applicant states there was some mistake in the process of applying for a protection visa in Australia. The applicant states the information on his forms is not by himself, but by a Malaysian lady, [Ms B], who is located in [Town 1] in [state]. The applicant states that around early July 2015 he met her in [Town 1] and she claimed that she could help him to apply for a protection visa for AU$[amount] or AU$[amount], on condition that he needed to work for her after he gets his protection visa.
The applicant states that due to his lack of understanding of the process and laws of Australia he was naive and handed her his photo and photocopy of his passport. After that he waited for her to ask him to provide other information but she made up the false information herself and sent out his application. He states he then found out that she was not a registered migration agent, and does not have a right to fill in his application form without his will. He states she was unwilling to give back the photocopies of his application. She persuaded him that everything would be all right.
The applicant states that during his appointment at the migration department he felt something was wrong so he decided to change his email address, from [Ms B]’s email address to his own email address. The applicant states it was after that he began to receive emails from the migration department.
The applicant states he would like to provide his own information once again including his personal information and details why he is seeking protection from the Australian government. He states he is willing to go for handwriting examination and signature examination if necessary. He states he is willing to cooperate in providing any information which is necessary.
The applicant appeared before the Tribunal on 2 May 2016 to give evidence and present arguments.
During the hearing the applicant told the Tribunal that he did not complete his visa application forms, and that a person in [Town 1] who claimed to be a migration agent completed the forms and he was unaware of the claims made. The applicant told the Tribunal it was not his writing on the forms and he did not sign the forms and he was unaware of the claims made in the forms.
The applicant told the Tribunal he only became aware of the claims made in his visa application forms when he received the delegate’s decision record. He told the Tribunal they were not his claims.
On questioning the applicant told the Tribunal he feared returning to Malaysia because he is facing a problem in Malaysia due to religion. The problems arose when he was a student at the Malaysia college [name] studying [course]. The lecturer set an assignment and the applicant was paired with another student, a Malay girl. The applicant told the Tribunal they went to her house to do the home work and went to her study room together. The applicant told the Tribunal the people from the village then came and told them they were not supposed to be in a close space together, and wanted the applicant to marry the girl and when he tried to flee they caught him and beat him and forced him to promise to marry the girl. The applicant’s claims are discussed in more detail below.
During the hearing the Tribunal noted the applicant’s visa application forms indicated the applicant feared returning to Malaysia because his ex-boss might kill him, and that he was a gangster in Malaysia and his ex-boss asked him to sell drugs and when the applicant refused he was found and beaten and his family was threatened and the applicant is concerned he will be killed if he returns. The applicant told the Tribunal these were not his claims and do not relate to him and his only concerns about returning to Malaysia are that he does not want to be forced to marry the girl and forced to join Islam and be punished if he does not. He told the Tribunal he does not have any other fears in relation to returning to Malaysia.
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.
FINDINGS AND REASONS
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department. On the basis of the copy of his passport the Tribunal finds that the applicant is a national of Malaysia. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Malaysia. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Malaysia, the Tribunal also finds that Malaysia is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
Credibility
During the hearing the Tribunal discussed with the applicant his background in Malaysia, including his family composition and education and work history. The Tribunal discussed with the applicant the claims made in his visa application forms and notes the applicant told the Tribunal these claims were not made by him and he had no knowledge of them until he received the delegate’s decision record. The Tribunal also discussed with the applicant the reasons he left Malaysia and why he fears returning. During the hearing the Tribunal raised its concerns about the credibility and plausibility of the applicant’s claims, as well as his delay in making his protection visa application. The Tribunal finds the applicant is not a witness of truth, and the Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to his claims. The reasons for this finding are discussed in more detail below.
As noted above the applicant told the Tribunal he feared returning to Malaysia because he is facing a problem in Malaysia due to religion. The problems arose when he was a student at the Malaysia college [name] studying [course]. The lecturer set an assignment and the applicant was paired with another student, a Malay girl. The applicant told the Tribunal they went to her house to do the home work and went to her study room together. The applicant told the Tribunal the people from the village then came and told them they were not supposed to be in a close space together, and they wanted the applicant to marry the girl and when he tried to flee they caught him and beat him and forced him to promise to marry the girl.
The applicant told the Tribunal that the girl was Islamic and came from an Islamic family and the villagers came and said they were not allowed to be together in a close space and a member from an Islamic organisation said that according to Islamic rules the applicant had to marry the girl or be caned. On questioning, the applicant was unsure which Islamic organisation the person belonged to.
The applicant told the Tribunal this occurred around November 2014 and when he tried to run away he fell down and they hit him with a stick and he now has [scars]. He told the Tribunal he was told that if a man spends time with a girl in a close space they have to get married. The applicant told the Tribunal he does not really understand Islamic rules.
On questioning, the applicant told the Tribunal he lived [number] to [number] kilometres away from the girl’s home. He told the Tribunal that after the villagers captured him he was forced to promise and swear to marry the girl. They forced him to take them to his home and show them where he lived, and then they let him go. The applicant told the Tribunal they tried to force him to marry the girl within one month, in December. The applicant told the Tribunal he did not wish to trouble his parents so did not tell them, nor did he tell the police.
The applicant told the Tribunal he was told he had to marry the girl otherwise they would punish him. The applicant told the Tribunal he told them he had to wait to recover from his injuries and get better. He told the Tribunal after that he decided to leave the country and left [in] January 2015. The applicant told the Tribunal he flew straight to Australia and used his passport to leave the country. He told the Tribunal his friend helped organise his visa through a travel agent. The applicant told the Tribunal he changed all his contact numbers and has not heard anything since he left Malaysia.
During the hearing the Tribunal raised its concerns in relation to the applicant’s oral evidence that he had gone to the girl’s house in order to complete an assignment and went into her study room, and the villagers then came and said you can’t do that and you must marry her. The Tribunal asked the applicant how the villagers became aware that he was alone with the girl in her study room if he was inside her house at the time. In response the applicant initially told the Tribunal he does not know how they became aware and thought her parents may have told them. Later in the hearing the applicant told the Tribunal that he had been seen walking with the girl and people were watching because it was strange, because not many Chinese people went to that village.
On further questioning the applicant told the Tribunal he went to the girl’s home, and that her parents were home at the time, and that they had let him into their home, and let him go into her study room with her to do the assignment. The applicant told the Tribunal that her parents agreeing to the situation did not mean the villagers did. The applicant told the Tribunal her parents did not have a problem because they had explained they were studying together, and it was their daughter so they knew their daughter. The applicant also told the Tribunal they tried to explain this to the people in the village but they did not accept this.
The Tribunal is concerned the applicant’s explanation of how the villagers became aware he was alone with the girl in her study room is not credible. The applicant’s initial response to the Tribunal’s question about this, that the girl’s parents may have told the villagers, does not make sense in light of his later evidence that they were home and permitted the applicant into their home and to study with their daughter in her study room, and that they were not amongst the people wanting to force the applicant to marry their daughter. Nor does the applicant’s response that he was seen walking with her explain how villagers became aware he was alone with her in her study room after they entered her house.
The Tribunal finds the applicant’s claim that villagers became aware that he was with the girl in her study room not credible. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.
During the hearing the Tribunal asked the applicant whether the girl’s parents wanted her to marry the applicant because of what happened. The applicant told the Tribunal the girl’s parents were not part of the group of people who were trying to force him to get married. The applicant told the Tribunal her parents did not want her to marry him, they did not want her to marry a Chinese person, but the villagers wanted her to marry him because of the Islamic rules.

During the hearing the Tribunal raised its concerns about the plausibility of the claim that a group of villagers would force a girl to marry against her parents’ wishes. In response the applicant told the Tribunal the villagers believed that if he did not marry the girl her body would be no longer pure, and no one would marry her. The Tribunal raised its concerns that that consideration would appear to be a more acute concern for her parents. In response the applicant told the Tribunal the villagers always follow the Islamic rules and therefore they wanted the applicant to marry the girl, and they wanted him to change from his Christian religion to Islam. The applicant told the Tribunal he feared returning to Malaysia because he may be forced to marry the girl or be punished. He told the Tribunal Malaysia is an Islamic country. The Tribunal does not consider the applicant’s claims that a group of villagers would force a girl to marry him against her parents’ wishes to be plausible. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.
During the hearing the Tribunal asked the applicant if he could return to Malaysia and live in another location in order to avoid the feared harm. The applicant told the Tribunal he could not do that because they knew where his house was. The Tribunal asked the applicant why he could not return to Malaysia and live in another area, such as Kuala Lumpur. The applicant told the Tribunal he could not do that because they knew where his house was and he still had [siblings] living in his house and maybe they will try to do something to his [siblings] and ask them where he was. On questioning if his [siblings] had been approached, the applicant told the Tribunal that after he travelled to Australia his [sibling] told them he was outside Malaysia. On questioning if his [siblings] had been approached since that time, the applicant told the Tribunal the villagers had not spoken to his [siblings] since then.
The Tribunal asked the applicant how the people who wish to harm him would know he had returned to Malaysia if he returned and lived away from his family home. The applicant told the Tribunal that if he lived in Malaysia he would contact his [siblings]. On questioning, the applicant confirmed he currently contacts his [siblings] by telephone. On questioning why the applicant could not continue to contact his [siblings] by telephone, the applicant told the Tribunal if he was inside Malaysia he would visit his home. On questioning why he would do that, the applicant told the Tribunal he would do that because it is his home.
The Tribunal noted the applicant had already left his home area by travelling to Australia, and asked the applicant why he could not return to Malaysia and live in another area, and stay away from his home area. In response the applicant told the Tribunal the members of the Islamic organisation already have his picture. He told the Tribunal that when they caught him they took his picture to stop him from running away. On questioning how taking his picture would prevent him from running away the applicant told the Tribunal that every one of the Malay people are Islamic and he does not know which one of them is part of the Islamic organisation and no matter where he is in Malaysia they can still find him.
The Tribunal raised its concerns about the plausibility of the applicant’s claim that he would be found no matter where he is in Malaysia, noting there were millions of people living in Malaysia and millions of people living in Kuala Lumpur, and questioned the applicant about how he thought he would be found. In response the applicant told the Tribunal he would be found through the picture. He told the Tribunal Malaysia is an Islamic country and the organisation is very big.
The Tribunal raised its concerns about the plausibility of the applicant’s oral evidence. In response the applicant told the Tribunal that every Malay in Malaysia is Islamic and his picture would be spread through the organisation. The applicant told the Tribunal he does not know how they work but that is how the thing goes. On questioning why his picture would be distributed if they did not know the applicant had returned to Malaysia, the applicant told the Tribunal they would spread his picture and as long as they see him they can catch him.
The Tribunal noted the applicant’s earlier oral evidence that the people who wished to harm him had not visited his [sibling] or family since his [sibling] told them he was outside Malaysia. The Tribunal noted this could indicate those people are not looking for him. In response the applicant told the Tribunal that in Malaysia there are Chinese Malaysians and Indians, but Malay is the highest population in Malaysia, and all Malays need to enter the Islamic religion when they are born and therefore become part of the Islamic organisation.
The Tribunal noted that none of the country information it was aware of, including the DFAT report noted above, suggested that there was an Islamic organisation within Malaysia that distributes photographs of people who were supposed to marry someone, in order to have people search and look for that person. In response the applicant told the Tribunal that he would have to marry the girl because they spent time together in a close space. The Tribunal finds the applicant’s claims that a photograph of him would be distributed through an Islamic organisation in Malaysia in order to find him and force him to marry the girl and change his religion to Islam, or punish him, is not credible. The Tribunal considers this reflects poorly on the applicant’s credibility and reliability of his evidence.
During the hearing the Tribunal also raised its concern in relation to the applicant’s delay in making his protection visa application once he arrived in Australia. The applicant told the Tribunal he arrived in Australia [in] January 2015. The Tribunal noted the applicant did not make his protection visa application until [July] 2015 and raised its concerns that such a delay could indicate the applicant did not fear returning to Malaysia. In response the applicant told the Tribunal that he did not know about the protection visa option until he met [Ms B] in June or July 2015.
While the Tribunal accepts the applicant may not have known about the protection visa application process on his arrival in Australia, the Tribunal would expect someone in his claimed situation, to be in fear of returning to Malaysia, would have sourced the information with less delay. The Tribunal considers the applicant’s delay in making his protection visa application after his arrival in Australia reflects poorly on his credibility and the reliability of his claims to fear returning to Malaysia.
Refugee criterion: s.36(2)(a)
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. 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 (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
As noted above the Tribunal finds the applicant is not a witness of truth, and the Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to his claims.
For the above reasons, the Tribunal is not satisfied the applicant accompanied a fellow student to her home and her study room in order to study together and that local villagers then tried to force the applicant to marry her because they had been alone in a close space together. The Tribunal does not accept people from the village came and told them they were not supposed to be in a close space together, and wanted the applicant to marry the girl. The Tribunal does not accept the applicant was caught fleeing and beaten and forced to promise to marry the girl. While the Tribunal accepts the applicant has scars on his body, the Tribunal does not accept those scars are from injuries inflicted for the reasons claimed by the applicant. The Tribunal does not accept the applicant was forced to promise to marry the girl, or had his picture taken and forced to show villagers where he lived. The Tribunal does not accept the applicant left Malaysia in order to avoid being forced to marry the girl and change his religion to Islam or be punished. The Tribunal does not accept the applicant was in fear of harm when he left Malaysia. The Tribunal does not accept anyone has approached the applicant’s [siblings] or family asking about the applicant. The Tribunal does not accept anyone in Malaysia had nor has any adverse interest in the applicant.
The Tribunal does not accept there is a real chance the applicant will be forced to marry an Islamic girl and change his religion or be punished if he returned to Malaysia now or in the reasonably foreseeable future. The Tribunal does not accept there is a real chance the applicant will suffer serious harm, or harm of any kind, for the reasons he claimed during the hearing.
The Tribunal notes the applicant told the Tribunal the claims made in his visa application forms were not his claims, and were not made by him, and those claims did not relate to him. The Tribunal does not accept there is a real chance the applicant will suffer serious harm for the reasons claimed in his visa application forms.
On the evidence before it, the Tribunal is not satisfied that there is any basis for the applicant to fear harm in Malaysia.
The Tribunal does not accept there is a real chance the applicant will suffer serious harm, or harm of any kind, for the reasons he has claimed, if he returned to Malaysia now or in the reasonably foreseeable future.
Therefore the Tribunal is not satisfied the applicant has a well-founded fear of persecution.
The Tribunal finds the applicant does not meet the definition of refugee set out in section 5H of the Act. Therefore the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion: s.36(2)(aa)
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection criteria.
For the reasons given above, the Tribunal is not satisfied that there is any basis for the applicant to fear harm in Malaysia on his return.
For the above reasons, the Tribunal is not satisfied the applicant accompanied a fellow student to her home and her study room in order to study together and that local villagers then tried to force the applicant to marry her because they had been alone in a close space together. The Tribunal does not accept people from the village came and told them they were not supposed to be in a close space together, and wanted the applicant to marry the girl. The Tribunal does not accept the applicant was caught fleeing and beaten and forced to promise to marry the girl. While the Tribunal accepts the applicant has scars on his body, the Tribunal does not accept those scars are from injuries inflicted for the reasons claimed by the applicant. The Tribunal does not accept the applicant was forced to promise to marry the girl, or had his picture taken and was forced to show villagers where he lived. The Tribunal does not accept the applicant left Malaysia in order to avoid being forced to marry the girl and change his religion to Islam or be punished. The Tribunal does not accept the applicant was in fear of harm when he left Malaysia. The Tribunal does not accept anyone has approached the applicant’s [siblings] or family asking about the applicant. The Tribunal does not accept anyone in Malaysia had nor has any adverse interest in the applicant.
The Tribunal does not accept there is a real risk the applicant will be forced to marry an Islamic girl and change his religion or be punished if returned to Malaysia. The Tribunal does not accept there is a real risk the applicant will suffer significant harm, or harm of any kind, for the reasons he claimed during the hearing.
The Tribunal notes the applicant told the Tribunal the claims made in his visa application forms were not his claims, and were not made by him, and those claims did not relate to him. The Tribunal does not accept there is a real risk the applicant will suffer significant harm for the reasons claimed in his visa application forms.
On the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he is returned to Malaysia.
On the evidence before it, the Tribunal is not satisfied that there are 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 the applicant will suffer significant harm. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
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) or s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Chris Thwaites
Member

7 June 2016
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 3963

7 June 2016

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Immigration

Administrative Law

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