1517239 (Refugee)

[2016] AATA 3819

1517239 (Refugee) [2016] AATA 3819 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517239

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Christian Carney

DATE:29 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2016 at 3:28pm

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

BACKGROUND

1. The applicant arrived in Australia [in] November 2014 as the holder of an Electronic Travel Authority Visitor visa with a passport issued to him by the government of Malaysia.  He applied for a Protection visa [in] February 2015, claiming to fear persecution in Malaysia for reasons of his Chinese ethnicity and Christian religion. 

2. The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Malaysia for reasons of his race, religion, nationality, membership of a particular social group or political opinion and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk he will suffer significant harm.  In considering these issues, the Tribunal has applied the law set out in Appendix 1.   

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. According to the information in his application for the visa, the applicant was born in [location] in [year].  He is a Malaysian citizen and is ethnically Chinese and is a Christian.  He has never married or been engaged to marry.  He resided at the same address in Malaysia from the time of his birth up until his departure to Australia in November 2014.  He worked in [an] industry as [Occupation 1] and [Occupation 2] of a [workplace] from 1997 to 2014. 

4. He claimed that there is systemic discrimination against Chinese people in Malaysia and that the policies of the Malaysian government favour ethnic Malays and are against ethnic Chinese people.  The government sets obstacles for the Chinese in the education system, which forced him to drop out of school and become [Occupation 1].  Because of the stagnant economy he had to keep changing jobs but he was discriminated against by Malay employers and could not find work.  He also experienced discrimination in his work as [Occupation 2] of a [workplace].  He became so disillusioned and disappointed in the Malaysian government that he decided to leave and come to Australia. 

5. On arrival in Australia he began attending a church and that has given him a meaningful life.  He is afraid to return to Malaysia because of the discrimination he has and will experience because of his Chinese ethnicity, and now he fears he would be harmed because he is a Christian.  The Muslims in Malaysia beat and abuse people who go to church.  Chinese Christians are persecuted and targeted for harm because of their ethnicity and religion.  He would have to stop going to church to avoid being beaten. 

6. He was invited to attend an interview to discuss his claims with the delegate [in] June 2015.  He contacted the Department by email [in] June 2015 and advised that he would not attend the interview because of ‘personal reasons’ but said that, if further information was needed, he could be contacted by email.  The delegate rescheduled the interview and invited him to attend an interview [in] June 2015; however, the applicant did not attend that interview.  The delegate rescheduled the interview a second time and invited him to attend an interview [in] November 2015, but the applicant did not attend that interview and did not contact the Department to explain why or to seek an adjournment. 

7. In a decision dated [in] November 2015, the delegate refused the application as she did not accept that the available independent information supported his claims to be at risk of serious or significant harm for reasons of his Chinese ethnicity or his Christianity or because he was a Chinese Christian. 

   Review application

8. On 14 December 2015 the applicant lodged an application for review with the Tribunal. 

9. By letter dated 15 December 2015 the Tribunal advised him that it had received his application and was requesting a copy of his file from the Department. 

10. By letter dated 4 April 2016 the Tribunal advised him that it had considered all the material before it but was unable to make a favourable decision on that information alone and invited him to give oral evidence and present arguments at a hearing on 29 April 2016 at 9:00am.  He was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  He did not respond to the letter. 

11. The applicant did not appear before the Tribunal on the day and at the time and place at which he had been scheduled to appear, nor did he contact the Tribunal about the failure to attend.  He did not nominate a person to be an authorised recipient for him.  The Tribunal finds that the invitation was sent to the last address for service provided in connection with the review.  The Tribunal is satisfied that the applicant was offered the opportunity to appear before the Tribunal but that he did not do so.  He failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

    FINDINGS AND REASONS

12. The applicant claims to be a citizen of Malaysia and in the absence of any evidence to the contrary the Tribunal accepts he is a national of Malaysia. 

13. The applicant claims that if returned to Malaysia he would be subjected to serious harm because of his Chinese ethnicity and his Christian religion.  As noted in Appendix 1, the mere fact a person claims to fear persecution for a particular reason does not establish either the genuineness of the alleged fear or that it is “well‑founded”, or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts.  The Tribunal is not required to make the applicant's case for him; nor is it required to accept uncritically any and all the allegations made by an applicant.  The Tribunal must determine whether the applicant before it is owed protection as set out in Appendix 1.

14. In the present case, the Tribunal observes that the applicant’s claims are lacking in detail in significant respects and he did not provide detailed information regarding the particular allegations he has made.  He has not provided detailed information to support his claim that he has experienced actual discrimination in his employment in Malaysia, including the details of when, where and how, he was discriminated against by Malay employers or the Malaysian government, or by colleagues or members of the community in his work in [an] industry.  Nor did he provide detailed information to support his claim that the policies of the Malaysian government favour ethnic Malays and are against ethnic Chinese people, including the details of such policies and how it is that they discriminate against Chinese people, including in the education and employment sectors, or how such policies would cause him to suffer serious or significant harm.  He has not provided any detailed information to support his claim that, since arriving in Australia, he has been attending a church and become a Christian, including the details of when, where and how he came to attend a church or why he was attracted to and decided to become a Christian.  Nor did he provide detailed information to support his claim that Christians or people who attend church are attacked and beaten by Muslims or other persons or groups in Malaysia, or that Chinese Christians have in the recent past been subjected to harm for reasons of their ethnicity and religion.

15. Without more evidence from or on behalf of the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why he left Malaysia, or whether he cannot or will not return to Malaysia because he fears harm there as he claims.  If he had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity.  The Tribunal would have sought further information in relation to the matters raised above.  The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicant and given him the opportunity to explain the particular details of what he fears would happen if he returns to Malaysia now or in the reasonably foreseeable future and the reasons why it would happen.  However, it was not possible to discuss any of these issues with him because, despite being advised by the Tribunal in its letter dated 4 April 2016 that it had considered all the material before it but was unable to make a favourable decision on that information alone, he did not attend a hearing and provided no further information or evidence in support of his claims.  The Tribunal has insufficient evidence to be satisfied that the events and circumstances he raised are factual and, on the evidence before it, does not accept his claims. 

16. On the evidence before it, the Tribunal is not prepared to accept, and does not accept, that the applicant has experienced discrimination or mistreatment or any other form of harm in his education and / or employment in Malaysia, including by the Malaysian government, employers, colleagues or members of the community in his work in [an] industry.  On the evidence before it, the Tribunal does not accept that he was unable to find work in Malaysia because of his Chinese ethnicity or that he has been subjected to discrimination, mistreatment or any other form of harm because of his Chinese ethnicity.  Nor on the evidence before it, does the Tribunal accept that the Malaysian government has not or will not care for him or protect him because of his ethnicity, or any other reason, or that the policies of the Malaysian government would cause him to suffer harm that would or could amount to serious harm.  On the evidence before it, the Tribunal is not prepared to accept, and does not accept, that the applicant has been attending a Christian church in Australia or that he has become a Christian since he arrived in Australia. 

17. For all of these reasons, on the evidence before it, the Tribunal does not accept there is a real chance the applicant would suffer harm from or because of the Malaysian government, whether through their policies or other indirect or direct action, because of his ethnicity or any other reason.  On the evidence before it, the Tribunal does not accept there is a real chance the applicant would be subjected to discrimination or mistreatment by Malay employers or Malay people that would cause him to suffer harm for reasons of his ethnicity or any other reason.  Nor does it accept on the evidence before it, that there is a real chance he would suffer harm from Muslims or other persons or groups for reasons of his religious beliefs or practice. 

18. On the evidence before it, the Tribunal is not satisfied that there is a real chance the applicant would face serious harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group, either now or in the reasonably foreseeable future, if he returns to Malaysia.  Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

19. The Tribunal has also considered the alternative criteria in regards to complementary protection and has had regard to the ‘PAM3 Refugee and Humanitarian - Complementary Protection Guidelines’.  For the same reasons as set out above, on the evidence before it, the Tribunal is unable to satisfy itself in this regard.  Accordingly, 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 Malaysia, there is a real risk that he will suffer significant harm. 

    CONCLUSIONS

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations and it finds that he does not satisfy the criterion set out in s.36(2)(a) or (aa).  There is no suggestion he 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) for a Protection visa.

    DECISION

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

    Christian Carney

    
    

    Member

    APPENDIX 1 - RELEVANT LAW

22. Section 65(1) of the Act provides that a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.  The criteria for a Protection visa are set out in s.36 of the Act.  An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c).  That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration, ‘PAM3 Refugee and Humanitarian - Complementary Protection Guidelines’ and ‘PAM3 Refugee and Humanitarian - Refugee Law Guidelines’, and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Refugee criterion

24. 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.

25. 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).

26. 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.  

    Complementary protection criterion

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

28. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

29. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where 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; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B).

    Credibility

30. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions including Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

31. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Foster J stated at 482 that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

32. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed at [25]:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

1. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”  Nevertheless, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

2. Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998) “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”  On this point, the Tribunal also takes into account the comments of Professor Hathaway in The Law of Refugee Status" (1991, Butterworths) at pages 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true: see MIMA v Rajalingam (1999) 93 FCR 220. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191]:

   … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.