1516278 (Refugee)

1516278 (Refugee) [2016] AATA 3961 (8 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516278
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Chris Thwaites
DATE:8 June 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 June 2016 at 3:26pm
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 26 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 copy 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 forms. In those forms the applicant indicates he left his country because his dad drank every day and would hit the applicant. The applicant indicates he has experienced harm in his country and states he was punched until he was bleeding, and sometimes the applicant had blood in his urine and coughed blood. The applicant states that if returns to his country he fears that as long as he is at home, one day his father is going to beat him to death. The applicant thinks his father will harm and mistreat him if he returns to his country. The applicant indicates he had moved to relatives but was found, and this caused trouble for his relatives. The applicant indicates he does not think the authorities in his country can and will protect him if he returns, and states he had called domestic violence department people for help but had been waiting for a long time and no one came to help.
As noted above, [in] November 2015 the delegate refused to grant the applicant a protection visa.
The delegate’s decision record indicates that [in] July 2015 the Department wrote the applicant informing him that his application may be decided without requesting further information, and invited the applicant to contact the Department to arrange an interview to discuss his claims. The delegate’s decision record indicates the applicant did not contact the Department to arrange an interview, and therefore the application was assessed based on the information before the delegate.
The delegate noted the information in the protection visa application forms indicated the applicant had never lived outside his home state of Perak, which led the delegate to believe he had not tried to relocate to another part of Malaysia to save himself from the claimed harm. The delegate noted the country information indicated the population of Malaysia was over 28 million, and the delegate concluded it was not plausible the applicant’s father would have the ability to find him anywhere he may go in Malaysia.
The delegate noted the applicant had outlined his situation in minimal detail with no supporting documentation, and the applicant did not take the opportunity to attend an interview to discuss his claims and provide additional information. In the delegate’s view, if the applicant had a genuine fear of serious or significant harm he would have contacted the Department to arrange an interview and take every opportunity available to discuss his circumstances and fear of harm in Malaysia.
The delegate also noted the applicant arrived in Australia [in] March 2014, and that following his visa expiration [in] June 2014, the applicant remained unlawfully in Australia for one year and three months before lodging his protection visa application [in] July 2015. The delegate indicated this delay in seeking protection raised doubts and questions in the delegate’s mind as to the genuineness of the applicant’s claims of fearing for his life. The delegate indicated they would have expected someone genuinely in the applicant’s situation to have researched his options for remaining in Australia, especially if he was genuinely fearful of returning to Malaysia.
Therefore, without further context, the delegate found on the information before them that the applicant did not have a well-founded fear of persecution in Malaysia. The delegate was not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act. Therefore the delegate found the applicant was not a refugee as defined by section 5H of the Act and did not satisfy the criteria in s.36(2)(a) for the grant of a protection visa. 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 risk he would suffer significant harm. Therefore the delegate found the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act. Therefore the delegate refused to grant the applicant a protection visa.
As noted above, on 26 November 2015 the applicant applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 2 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
During the hearing the applicant told the Tribunal he feared his father will beat him and harm him, like he has in the past, if the applicant returned 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).
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 Malaysian 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)(a) & (aa).
Refugee criterion: s.36(2)(a)
During the hearing the Tribunal discussed with the applicant his background in Malaysia, his family composition, education and work history, as well as the reasons he left Malaysia and his fear of returning.
The applicant told the Tribunal that his father drinks a lot and beats the applicant. This has happened since his mother died. He told the Tribunal his father would hit him with objects and indicated a scar on his [body]. The applicant told the Tribunal he had reported it to the police who took a record but didn’t do anything. On questioning if he had tried to move away from his father, the applicant told the Tribunal he went to [another country] to work for a relative, and he was there for one week before his father came looking for him. His father did not want the applicant living away from him. His father knew where his relative lived and came there and found the applicant. His father was angry and argued with his relative and took the applicant back to Malaysia.
On questioning when the applicant decided to come to Australia, the applicant told the Tribunal he first went to [Country 1], but there wasn’t anything there, and the applicant checked information on the Internet and then came to Australia. On further questioning the applicant told the Tribunal he went to [Country 1] about two years ago and stayed for about two weeks, but there was nothing there and the weather didn’t fit, so he then returned to Malaysia. He did not stay with his father at that time and stayed with friends for a few days before he came to Australia. The applicant told the Tribunal a relative paid for his travel, and that the applicant had not been in contact with his father since the applicant left for [Country 1].
During the hearing the Tribunal raised the possibility of the applicant returning to Malaysia and living somewhere away from his father, to avoid the feared harm. The Tribunal suggested a big city such as Kuala Lumpur. In response the applicant told the Tribunal his father would come and try to find him. On questioning the applicant about how his father would know the applicant had returned to Malaysia and was living somewhere, the applicant told the Tribunal he only has several relatives and friends and his father would find him.
On questioning, the applicant told the Tribunal he has friends but no relatives in Kuala Lumpur. On further questioning the applicant told the Tribunal his friends would contact his father. The Tribunal questioned the applicant about why his friends would do that if the applicant asked them not to. In response the applicant told the Tribunal his friend’s parents would not like someone to stay in their home for too long, and they would tell his father. The Tribunal asked the applicant if he could go to Kuala Lumpur or another place in Malaysia where he could work and look after himself and where he did not need to stay with friends, and therefore somewhere where his father would not know where he was. In response the applicant told the Tribunal that when he is in Malaysia and thinks of his father he will fear.
The Tribunal noted that if his father did not know the applicant was in the country he had no reason to be looking for him. The Tribunal noted there are a lot of people who live in Malaysia and the chance of the applicant’s father finding him would appear to be remote or far-fetched. In response the applicant told the Tribunal he would like to stay in Australia.
In response to the Tribunal again raising the possibility of the applicant returning to Malaysia and living away from his father to avoid the feared harm, the applicant told the Tribunal his father would find him. On questioning how his father would know he had returned to Malaysia or where he was, the applicant told the Tribunal he would find out through his friends, and that they would know by checking the internet. When asked how they would know he had returned to Malaysia by checking the internet, the applicant told the Tribunal he did not know.
On questioning if the applicant had any other fears about returning to Malaysia, the applicant indicated he only fears harm from his father and he did not have any other fears of returning to Malaysia.
Section 36(2)(a) of the Act refers to Australia having protection obligations to a person because they are a ‘refugee’.
The term ‘refugee’ is defined in s.5H(1) of the Act as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
As noted above, the Tribunal finds the applicant is a national of Malaysia, therefore he must meet the requirement of s.36(2)(a)(1)(a) in order to satisfy the definition of ‘refugee’ under s.5H.
The concept of ‘well-founded fear of persecution’, which forms part of the definition of ‘refugee’ is further defined in s.5J of the Act.
Section 5J(1) requires, amongst other things, that the real chance of persecution relates to all areas of a receiving country: s.5J(1)(c).
The Tribunal accepts the applicant has been assaulted by his father while living with him in Perak, and has scars on his body from those attacks. The Tribunal accepts the applicant will face a real chance of serious harm if he were to return to his father’s home in the state of Perak.
On the evidence before it, noting the country information referred to in the delegate’s decision record and discussed with the applicant during the hearing, including the Department of Foreign Affairs and Trade Country Report on Malaysia published on 3 December 2014, (DFAT Report) the Tribunal finds the population in Malaysia exceeds 28 million people, and the population of Greater Kuala Lumpur is over seven million people.
On the evidence before it the Tribunal does not accept there is a real chance the applicant’s father will become aware the applicant has returned to Malaysia through his friends and through the internet. The Tribunal considers the chance the applicant’s father will find the applicant if the applicant returned to Malaysia and lived outside his father’s home area in Perak, such as Kuala Lumpur, is remote.
On the evidence before it, the Tribunal is not satisfied there is a real chance the applicant will face serious harm in all areas of Malaysia.
Therefore the Tribunal is not satisfied there is a real chance of persecution in all areas of the receiving country.
The Tribunal finds the applicant does not satisfy the requirements of s.5J(1)(c) and therefore the applicant does not have a well-founded fear of persecution.
Therefore the applicant is not a refugee as defined by s.5H of the Act.
Having considered the claims individually and cumulatively, 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).
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 he may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection criteria.
As noted above, on the evidence before it, the Tribunal finds the population in Malaysia exceeds 28 million people, and the population of Greater Kuala Lumpur is over seven million people. On the evidence before it the Tribunal does not accept there is a real risk the applicant’s father will become aware the applicant has returned to Malaysia through his friends and through the internet. The Tribunal considers the chance the applicant’s father will find the applicant if the applicant returned to Malaysia and lived outside his father’s home area in Perak, such as Kuala Lumpur, is remote.
Therefore, while the Tribunal accepts the applicant will face a real risk of significant harm if he were to return to his father’s home in the state of Perak, where he has lived in the past, the Tribunal finds the feared harm is localised.
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.
While the applicant did not raise any concerns about relocating to another part of Malaysia, apart from his fear that his father would find him (which the Tribunal does not accept is a real risk), the Tribunal also notes the applicant’s oral evidence that he was educated in Malaysia and has worked in Malaysia in the past and has also found work in Australia.
On the evidence before it, the Tribunal is satisfied it would be reasonable for the applicant to relocate away from his father’s home area in Perak, to an area of the country where there would not be a real risk that the applicant will suffer significant harm, such as in Kuala Lumpur.
Therefore, according to s.36(2B)(a) there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia.
Therefore the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm if returned to Malaysia.
On the evidence before it, this Tribunal is not satisfied 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 the applicant will suffer significant harm.
Having considered the claims individually and cumulatively, 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)(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. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Chris Thwaites
Member  8 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 3961

8 June 2016

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