1602572 (Refugee)

1602572 (Refugee) [2016] AATA 4029 (10 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602572
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:David McCulloch
DATE:10 June 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 June 2016 at 1:47pm

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 on 8 February 2016 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] January 2016. The delegate refused to grant the visa [in] February 2016.
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. The Tribunal has before it DFAT Country Report – Malaysia, 3 December 2014. It has not specifically relied on any information in that report in making this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on his accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant entered Australia [in] October 2015 on a Visitor visa. The application for a Protection visa was lodged [in] January 2016.
The application forms for the protection visa indicate the following. The applicant was born[DOB]. His citizenship is Malaysian. He speaks, reads and writes English and Malay. The applicant has provided no details as to other family members either in Australia or in Malaysia. The applicant indicates that has no personal contacts in Australia. The applicant lists his address in Malaysia from 1 January 2005 until currently as [deleted].
In the relevant application form, the applicant says that he left Malaysia because when he was very young, his girlfriend became pregnant and the applicant does not know what to do. His girlfriend’s parents are very angry. Her father beat up the applicant and said that he was going to kill him. The applicant was beaten up and thrown naked into the bush. His girlfriend’s parents are rich. The applicant does not want his family to get involved.
The applicant fears that, if he returns to Malaysia, his girlfriend’s family will kill him, specifically the father. The applicant believes that he is not safe in another part of the country because he will be found, and that Malaysia is a small country. He indicates that authorities would not protect the applicant because this is a personal matter.
The applicant did not attend the interview that was scheduled with the delegate of the Minister.
In the Tribunal hearing, the applicant indicated that he met his girlfriend, [name], at school when they were [age], and they became boyfriend and girlfriend when they were [age]. The applicant indicated that he left school in September 2014 and then started working as a [occuption]. He indicated that he ended his employment a month before coming to Australia due to the difficulties that he faced.
He indicated that, about a month before he came to Australia, his girlfriend’s father came into [his work place] and confronted the applicant over the fact that his daughter was pregnant. The applicant indicated that he did not know that his girlfriend was pregnant until that point in time. The applicant indicated that he was the only person [at work]. He indicated that the father took him outside and beat him up, and that the applicant then found himself in a bush. The father threatened to kill the applicant. The applicant said that he ran home. He said that he got his belongings and avoided discussing the issue with his mother who was at home, and left.
The applicant said that he went to stay with a friend in the same town and made arrangements to come to Australia. He indicated that he has never spoken to his parents since, nor made any contact with his girlfriend. He has had no further contact with his girlfriend’s father.
The applicant indicated that he did not go to the police because this was a personal matter. The Tribunal noted that the role of the police is to take action in relation to personal matters where there is criminal conduct.
The Tribunal is satisfied that the applicant is a citizen of Malaysia, and accordingly his claims will be assessed against Malaysia.
The Tribunal has credibility and plausibility concerns with the applicant’s claims.
Firstly, the applicant has given inconsistent evidence in terms of a key detail of him being beaten up. In the applicant’s written claims, he indicates that he was thrown into the bush naked. When the applicant recounted details of the event in the Tribunal hearing, he made no mention of being stripped naked by his girlfriend’s father. He referred to running home after finding himself in the bush, which would seem unlikely if he was naked. When this inconsistency was put to the applicant in the hearing he indicated that his clothes were torn in the altercation. The applicant said that his knowledge of English is not good which is why he used the term naked in the application.
The Tribunal notes that the applicant has indicated in the application forms that he can read, write and speak English. The articulation of the applicant’s claims in the relevant forms suggests to the Tribunal that he has a good grasp of written English. The applicant confirmed in the hearing that he filled in the forms himself. Even accounting for English being the applicant’s second language, the Tribunal is not persuaded that the inconsistency between the applicant claiming that he was naked and his clothes were torn is explicable due to language difficulties.
This is not a determinative factor in ultimate conclusions concerning the applicant’s credibility but it has been cumulatively considered together with the other problems with the evidence identified below.
Secondly, the Tribunal finds it inherently implausible that the applicant would leave home immediately after the incident and have no further contact with his family, either from Malaysia or Australia. In the hearing, the applicant indicated that he is close to his parents and that they are religious. He was concerned about them becoming aware that he had got his girlfriend pregnant as it would bring shame on them, which is why he has not been in contact. The Tribunal pointed out to the applicant that it would seem likely that his girlfriend’s parents would contact his parents in relation to the situation. The applicant responded by saying that his girlfriend’s parents did not know his parents. The Tribunal indicated that his girlfriend would be in a position to tell her parents who the applicant’s parents were, and put them in contact.
The Tribunal considers that it defies credibility that the applicant, as a young man of [age], who was living with his parents, and was close to them, would leave his family home, stay in Malaysia for a month at a friend’s place, travel to a foreign country and have absolutely no contact with his family, obviously leaving them incredibly concerned for his welfare. The Tribunal does not accept the explanation that he did not want his family to know about his girlfriend becoming pregnant, because the Tribunal considers that they would be made aware of this by his girlfriend’s family and that this would be obvious to the applicant.
Thirdly, the Tribunal finds it inherently implausible that the applicant would have no further contact with his girlfriend, most particularly to ascertain the situation in relation to his unborn child. The applicant, in the hearing, said that he just wanted to leave and start a new life. The Tribunal finds this unlikely.
Fourthly, the Tribunal considers it implausible that one altercation, even a physical attack by an angry father concerning the pregnancy of his daughter, accompanied by verbal threats, would cause a person to fear of a real chance of serious or significant harm from that person such as that they would uproot their life without any further contact with their family or girlfriend and travel to a foreign country. The Tribunal explored with the applicant that, if he held such fear, why he could not relocate to some other part of Malaysia, such as a city like Kuala Lumpur. The applicant said that he was young and did not think of this. The applicant then said that his girlfriend’s father is rich and smart. The Tribunal asked the applicant what his girlfriend’s father did for work. The applicant did not know.
The Tribunal does not consider that the applicant’s claimed actions in leaving his family and girlfriend without contact, and travelling to a foreign country, are not commensurate with what has been claimed to have occurred, even if there was some degree of ongoing concern in relation to his girlfriend’s father’s future actions. The Tribunal considers it most likely that if the applicant held a real fear of harm from his girlfriend’s father, he would have reported the issue to the police and/or discussed the issue with his family, notwithstanding that this may have been a difficult thing to do. The Tribunal does not accept the applicant’s explanation that the police would not be interested in the issue because it was a personal matter.
Considering all of the evidence, the Tribunal does not consider that the applicant has been a truthful witness. The Tribunal acknowledges that a number of the Tribunal’s concerns are based on issues of plausibility and that care needs to be taken in making adverse findings on this basis. However, the cumulative impact of the problems identified with the applicant’s evidence cause the Tribunal to consider that the core aspects of the applicant’s claims have been constructed.
The Tribunal is not satisfied that the applicant was confronted, threatened with being killed, and attacked by the father of his girlfriend who had become pregnant. The Tribunal is not satisfied that there is any ongoing desire by the girlfriend’s father or her family to harm the applicant. The Tribunal is not satisfied that the applicant left the family home without any further contact with his family or his girlfriend for the reasons claimed.
The applicant indicated in the hearing that there is no basis on which he fears returning to Malaysia other than the situation relating to his pregnant girlfriend.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In relation to the refugee criterion, the Tribunal is not satisfied that the applicant has a well- founded fear of being persecuted for one of the enumerated reasons in s.5J(1), for the reasons claimed, or for any other reasons.
In relation to the complementary protection criterion, 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 for the reasons claimed, or for any other reasons.
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
David McCulloch
Member
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 4029

10 June 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction