1515581 (Refugee)

[2016] AATA 3681

1515581 (Refugee) [2016] AATA 3681 (21 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515581

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Chris Thwaites

DATE:21 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 21 March 2016 at 9:23am

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 [in] July 2015 and the delegate refused the visa [in] October 2015.

3. On 16 November 2015 the applicant applied to the Tribunal for review of that decision.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). 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

9. 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

10. 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.

11. The applicant’s written reasons for claiming protection are contained in her visa application form and state that she has been seriously harmed in Malaysia and fears for her life. She had been in a relationship with her boyfriend who had asked her to help him with the setup of an overseas business, and the applicant lent him or her savings. He then disappeared. Not long after he went missing a group of Malays found the applicant and told her that her boyfriend owed them money. They asked her to pay his debts because she was the only one they could find who was connected to him. The applicant was scared and reported this to the police. A week later they came to her place and smashed everything and slammed her really hard. They warned her not to try to go to the police again. The applicant had no choice but to pay them. Later on, after she could not keep up with the payments, she tried to run away and hide. They found her and tied her up, they put tape over her eyes and took her to a factory. She was bashed and they held a knife at her neck and threatened her that if they caught her again they would make her pay back the money by working for them as a sex slave.

12. The applicant claims that she is afraid that if she returns to Malaysia these people will find her and forced her to work for them against her will. She states she can’t go to the police because they will hurt her and her life is in danger. She states people smashed everything in her place and she has been captured by them twice. They kicked her and slammed her and threatened her to pay them money. The applicant states the Malaysian police are corrupt, and after she went to the local police they found her and physically assaulted her, warning her not to do it again, therefore she is very scared. The applicant states these people bribed the police and the police will help them and give them information they need. The applicant was found by them and they seriously harmed her. The applicant thinks the same or similar situations will occur if she returns to Malaysia. She does not think the authorities in Malaysia can or will protect her if she returns, and states the Malaysia police are corrupt. The police were bribed and worked with them to make more money. If the applicant keeps paying them the money, she believes the police will get some as well. The applicant does not think she will be able to relocate inside Malaysia because it is very easy to be found in Malaysia. The applicant states these people will get help from the corrupt local authorities to get the information they need to find her.

13. According to the delegate’s decision record, which the applicant provided to the Tribunal, the applicant did not take the opportunity provided to request an interview with the delegate, and the delegate made his decision on the information before him. In the decision record the delegate refers to country information, including country information about the Royal Malaysian Police Force and Malaysian security forces, authorities and the judiciary, and concluded the applicant would receive effective protection in Malaysia against any threats she faces. The delegate found the Malaysian State could provide protection against persecution to the applicant and was willing and able to offer such protection. The delegate found the applicant could access State protection, and that the protection was durable and consisted of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Therefore the delegate was satisfied that there were effective protection measures available to the applicant in Malaysia, and that the applicant did not have a well-founded fear of persecution and therefore was not a refugee as defined by s.5H of the Act. The delegate also found that as the applicant could obtain, from an authority of her country, protection such that there would not be a real risk she would suffer significant harm, there was taken not to be a real risk the applicant would suffer significant harm. Therefore the delegate was 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 risk she would suffer significant harm. Therefore the delegate was not satisfied the applicant was a person in respect of whom Australia had protection obligations, and refused to grant a Protection visa.

14. As noted above, the applicant applied to the Tribunal for review of that decision on 16 November 2015.

15. On 8 February 2016 the Tribunal wrote to the applicant by email advising her that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 March 2016. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice.

16. The applicant appeared before the Tribunal on 11 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. At the beginning of the hearing the applicant requested the hearing be adjourned, as her representative had prepared some documents and materials for her but had not turned up to the hearing. The Tribunal agreed to adjourn the hearing for seven days to allow the applicant to obtain the documents and materials from her representative and to organise the representative’s attendance at the hearing.

17. The applicant then requested an adjournment of two weeks’ time. When asked why the applicant required two weeks, she told the Tribunal she wanted the time in case her current representative did not turn out well with her, then she would have time to find another representative.  The Tribunal noted that the applicant had been notified of the hearing on 8 February 2016, and that she had told the Tribunal her representative had already prepared documents and materials for her. The Tribunal noted the applicant had had over four weeks’ notice of the hearing and the Tribunal was prepared to adjourn the matter for another seven days. The Tribunal considered that seven days was a reasonable amount of time for the applicant to obtain the documents and materials from her representative and to organise their attendance at the hearing, or to consult another representative if she so wished. The applicant then told the Tribunal that that should be okay and was not a problem.  

18. The applicant then asked the Tribunal to adjourn the hearing for two weeks as her mother was expected to visit her and might be here over that time and the applicant may not have time to attend. The Tribunal invited the applicant to bring her mother to the hearing if she would like her to give evidence. The applicant told the Tribunal she would not ask her mother to the hearing or to give evidence. The Tribunal noted the hearing was expected to take only two or three hours at the most, and noted the applicant had been on notice of the hearing date since 8 February 2016, and the Tribunal did not agree to adjourn the hearing for longer than seven days because the applicant’s mother may be visiting at that time.

19. The Tribunal adjourned the hearing until 18 March 2016. The applicant was given a letter notifying her that the hearing would resume on 18 March 2016 at 9.30am.

20. On 17 March 2016 the Tribunal sent an automated SMS hearing reminder to the mobile telephone number the applicant had provided to the Tribunal.

21. The applicant did not appear before the Tribunal on the day and at the time and place scheduled for the resumption of the hearing, and the Tribunal has decided to make its decision on the information before it.

    FINDINGS AND REASONS

    Country of nationality

22. The applicant claims to be a citizen of Malaysia and provided a copy of her passport to the Department. On the basis of the copy of her 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).

    Refugee criterion: s.36(2)(a)

23. 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.)

24. In this particular case, the applicant’s claims are unsubstantiated and without further detail amount to mere assertions. If the applicant had attended the resumed hearing, the Tribunal would have had the opportunity to discuss the applicant’s claims with her. The Tribunal would have asked the applicant about her relationship with her boyfriend, and when he had asked her to help him set up an overseas business. The Tribunal would have asked the applicant about the agreement she had with him to lend him her savings. The Tribunal would have asked her about when her boyfriend went missing, and when she was first approached by the group of Malays and asked to repay his debt. The Tribunal would have asked the applicant about the report she made to the police and what their response was. The Tribunal would also have asked the applicant about her property being damaged, and the assault and threats, and her payments on the debt, and what happened when she could not keep up with the payments. The Tribunal would have asked the applicant about where she ran away and tried to hide, and what happened when they found her. The Tribunal would have asked the applicant about the arrangements she made to leave Malaysia and if she had any other reasons for fearing returning to Malaysia.  

25. The letter inviting the applicant to the hearing put the applicant on notice that the Tribunal had considered all the material before it and was unable to make a favourable decision on that information alone. The applicant did not give any evidence about her claims at the hearing held on 11 March 2016 and did not appear before the Tribunal on the day and at the time and place scheduled for the resumption of the hearing, and no further request for a postponement was made or granted.

26. The evidence before the Tribunal is not sufficiently detailed for it to be satisfied about the applicant’s claims.  On the evidence before it, the Tribunal is not satisfied the applicant lent money to her boyfriend to set up a business, or that her boyfriend then went missing, and the applicant was approached by a group of Malays who told her that her boyfriend owed them money and asked her to repay his debt. The Tribunal is not satisfied the applicant reported this incident to the police, or that a week later her place was smashed and she was slammed really hard. The Tribunal is not satisfied the applicant was warned not to try to go to the police again, or given no choice but to pay them. The Tribunal is not satisfied that after the applicant was not able to keep up with the payments she tried to run away and hide. The Tribunal is not satisfied she was found and tied up, or had her eyes taped, or that she was taken to a factory. The Tribunal is not satisfied the applicant was bashed and had a knife held to her neck, or that she was threatened that if she was caught again they would make her pay back the debt by working for them as a sex slave. The Tribunal is not satisfied the applicant departed Malaysia in fear of harm, or that anyone was looking for her or holding her responsible for a debt at that time.

27. On the evidence before it, the Tribunal is not satisfied that there is any basis for the applicant to fear harm in Malaysia on her return. The Tribunal is not satisfied that there is a real chance the applicant will be threatened and forced to repay a debt, or kidnapped, or assaulted or forced to work as a sex slave, if she returned to Malaysia now or in the reasonably foreseeable future. The Tribunal is not satisfied the Malaysian police have been bribed by the group of Malays or that there is a real chance they would provide information about her to anyone, or not offer her protection. The Tribunal is not satisfied there is a real chance the applicant’s life will be in danger, or that she will be kidnapped or suffer serious harm, or harm of any kind, for any of the reasons she has claimed, if she returned to Malaysia now in the reasonably foreseeable future.

28. On the evidence before it, the Tribunal is not satisfied the applicant has a well-founded fear of persecution, and therefore she does not meet the definition of refugee set out in s.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).

    Complimentary protection criterion: s.36(2)(aa)

29. 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.

30. For the reasons given above, the Tribunal is not satisfied that there is any basis for the applicant to fear harm in Malaysia on her return. The Tribunal is not satisfied that, if the applicant was to return to Malaysia, she would face any harm for any reason. The Tribunal is not satisfied there is a real risk the applicant will be threatened, or assaulted, or kidnapped, or forced to repay a debt, or that her life would be in danger, or that she would be forced to work as a sex slave if she was returned to Malaysia. The Tribunal is not satisfied the Malaysian police have been bribed by the group of Malays or that there is a real risk they would provide information about her to anyone, or not offer her protection. The Tribunal is not satisfied there is a real risk the applicant will suffer significant harm, or harm of any kind, for any of the reasons she has claimed, if returned to Malaysia.

31. On the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if she is returned to Malaysia.

1. 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

2. 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).

3. 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

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

   Chris Thwaites
   Member  21 March 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.

   …