1602987 (Refugee)

[2016] AATA 3870

1602987 (Refugee) [2016] AATA 3870 (10 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602987

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:10 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 10 May 2016 at 10:50am

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 [in] March 2016 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] September 2015.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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

9. The issue in this case is whether the applicant’s claims are made out. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. The applicant provided a photocopy of the biodata page of a Malaysian passport. In his application for protection he stated that he left Malaysia because he had been involved in some serious issue with gangsters which were Malays, he was threatened a few times and was whacked by them constantly. The issue was even on TV, it happened in [location]. When asked what he believes will happen if he returns he said his life would be threatened. When asked if he had experienced harm in Malaysia he has ticked ‘no’. He has then indicated he did seek help in Malaysia, saying that he reported them to the police but they did not take any action, they caught them and locked them up for about 1 day and then released them. When asked if he had moved to another part of the country for safety he said that he did not because he felt that they could get him anywhere in Malaysia. When asked whether he thought he would be harmed or mistreated if he returned he said he would be, that he would be forced to participate in illegal business activities, being beaten and have his life threatened by money lender. When asked if he believed the authorities would protect him he said no, the police usually being corrupt support their own kind, as some of the stories you can understand from the internet. When asked whether he would be able to relocate in Malaysia he said no he is not working at the moment and is in financial difficulty.

11. The delegate refused the application. The applicant applied for review. He has not provided any further information to the Tribunal.

12. On 21 March 2016 the Tribunal contacted the applicant because the applicant’s email address did not appear to exist and to seek a further email address. However, the applicant hung up. On 5 April 2016 the Tribunal wrote to the applicant at his postal address listed on his application for review, advising 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 9 May 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. On 2 May 2016 and again on 6 May 2016, SMS hearing reminders were sent to the applicant’s mobile telephone number. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The applicant has not contacted the Tribunal to explain why. 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

    Identity and nationality

13. The applicant claims to be a citizen of Malaysia, and has provided the biodata page of a Malaysian passport. On the basis of this evidence and with no evidence to the contrary, I find that the applicant is a citizen of Malaysia, his country of nationality, and his receiving country. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country and I find that he does not have such a right.

    Credibility

14. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

15. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

16. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

17. The Tribunal invited the applicant to a hearing as his claims were vague and undetailed. He has not taken up the opportunity to provide further information about his claims. He did not attend the Tribunal to discuss these claims.

18. The Tribunal has significant concerns regarding the claims of the applicant. Had the applicant attended the hearing, the Tribunal would have questioned him about his claim to have been involved in some serious issue with gangsters which were Malays, to have been threatened a few times and whacked by them constantly. The Tribunal would have questioned him about why, when and how these events occurred, and what significance [location] has and why he was there, if he was.

19. The applicant claims that if he returns to Malaysia his life would be threatened. Whilst it appears to be a typo that he has ticked ‘no’ when asked if he had experienced harm in Malaysia, he has not attended the Tribunal to explain this and provide further details if he has been harmed. Had the applicant attended the hearing the Tribunal would have asked him why his life would be threatened. When asked whether he thought he would be harmed or mistreated if he returned he said he would be, that he would be forced to participate in illegal business activities, being beaten and have his life threatened by money lender. Had the applicant attended the hearing, the Tribunal would have discussed with the applicant the reasons for his claimed fear, and would have discussed in more detail the harm he claims to fear. The Tribunal would have discussed and sought his views on independent country information about the situation in Malaysia.

20. The applicant claimed he had sought help following the harm but claimed he reported them to the police but they did not take any action, they caught them and locked them up for about 1 day and then released them. When asked if he thought the authorities would protect him he said no, the police usually being corrupt support their own kind, as some of the stories you can understand from the internet. Had the applicant attended the hearing, the Tribunal would have questioned him about these claims, how the police responded specifically, when ‘they’ were locked up, and then released, on what basis, his claim that the police are corrupt, how he knows or believes this, and would have discussed and sought his views on independent country information about the situation in Malaysia and his claim that he does not believe the authorities can protect him.

21. The applicant claims that he did not try to move to another part of Malaysia because he felt that they could get him anywhere in Malaysia. When asked whether he would be able to relocate in Malaysia he said no he is not working at the moment and is in financial difficulty. Had the applicant attended the hearing, the Tribunal would have questioned him about these claims, why he believes they could get him anywhere in Malaysia, why him not working and being in financial difficulty may leads to him being unable to relocate to another part of Malaysia in his circumstances.

22. Had the applicant attended the hearing, the Tribunal would have discussed relevant country information about gangs, moneylenders and state protection with him. He did not, so the Tribunal could not raise these matters with him.

23. The applicant has not attended the hearing with the Tribunal to provide more information about his claims, where he was advised in the hearing notice that the Tribunal 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 applicant’s claims are vague and very limited, with very little detail regarding the situation that has led to his claimed fear of harm. As stated above, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and the failure of the applicant to attend the Tribunal hearing, and vague and limited claims as provided, leads the Tribunal to have significant credibility concerns about the claims of the applicant.

24. On the basis of the very limited evidence before it, the Tribunal is not satisfied that the applicant was involved in some serious issue with gangsters which were Malays, that he was threatened a few times and was whacked by them constantly, that this issue was on TV, or that it happened in [location]. On the information available to it the Tribunal does not accept that the applicant has a genuine subjective fear of serious harm from gangsters which were Malays, money lenders or anyone else. On the evidence before it, the Tribunal does not accept there to be a real chance that the applicant faces serious harm if he returns to Malaysia, now or in the reasonably foreseeable future.

25. Having considered the applicant's claims, the Tribunal finds that there is no real chance that the applicant will face persecution for any s.5J(1)(a) reason if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for any of those 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 because the person is a refugee as defined in s.5H. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

26. The Tribunal has considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it 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 the applicant will suffer significant harm.

27. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from a group of gangsters which were Malays, money lenders or anyone else if he returns to Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition. Having found above that the Tribunal is not satisfied that the applicant has suffered harm as claimed, nor has the fears he claims, and that there is no real chance that the applicant will face persecution for any reason, it follows that 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 the applicant will suffer significant harm.

    Conclusions

28. 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).

29. 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).

30. 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

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

    Sean Baker
    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.

    …