1604321 (Refugee) - [2017] AATA 2089

1604321 (Refugee) [2017] AATA 2089 (17 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604321
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Denis Dragovic
DATE:17 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 July 2017 at 9:39am
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Chinese Malaysian male homosexual - Effeminate males – Psychological harm – Fragile mental health
LEGISLATION
Migration Act 1958, ss.5H, 5J, 5K-LA, 36, 65, 377, 499
Migration Regulations 1994, Schedule 2
CASES
S395/2002 V Minister for Immigration and Multicultural Affairs [2003] HCA 71
SZALZ v MIMIA [2005] FCA 143
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 [in] March 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] October 2015. The Tribunal viewed a copy of his Malaysian passport. The Tribunal accepts that the applicant is a citizen of Malaysia and will assess the applicant’s claims against Malaysia as his country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes. I also find that the applicant cannot avail himself of a right to enter and reside in a third country.
The Tribunal received evidence from [the] applicant’s partner.
The delegate refused to grant the visa on the basis that they were not satisfied that there was neither a real chance of persecution nor a real risk of suffering significant harm.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1604321 (Refugee)

Details

AGLC: 1604321 (Refugee) [2017] AATA 2089
Case: [2017] AATA 2089
Decision Date: 17 July 2017

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Chinese Malaysian male homosexual. The applicant claimed he was perceived as effeminate, leading to discrimination and harassment in Malaysia, including being verbally abused in public, denied a promotion at work, and ostracised by his family due to his sexual orientation. He asserted that these experiences caused him considerable stress and made it impossible for him to live in Malaysia. The decision under review was made by the Refugee Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, either under the refugee convention or through complementary protection. Specifically, the Tribunal had to determine if the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia, considering his claims of persecution based on his perceived effeminate characteristics and homosexual orientation. The Tribunal also considered relevant policy guidelines and country information assessments as mandated by Ministerial Direction No. 56.

The Tribunal found the applicant to be a credible witness, accepting his claims of being perceived as effeminate and experiencing discrimination and harassment since high school. It accepted that his family objected to his sexual orientation, leading to his mother disowning him and his father warning him against homosexual activities. The Tribunal also accepted that he was denied a promotion due to colleagues' objections to his perceived effeminacy and that he faced difficulties in subsequent employment due to his characteristics. The Tribunal considered the applicant's narrative regarding his realisation of his homosexual orientation and his long-term relationship, accepting these as fact. Ultimately, the Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 Summary of applicant’s claims: The applicant stated that he is a man of ‘sissy’ characteristics and that people believe him to be a woman. They would point at and verbally abuse him when he went out in public. Because of this he has been under considerable stress and feels that he is unable to live in Malaysia. He claims that he wasn’t promoted in a job because of this. He left Malaysia once before remaining in Australia for 3.5 years without declaring himself or claiming protection because he didn’t know the visa system. Upon return to Malaysia he claimed that things hadn’t improved for him and as such he returned to Australia but this time claimed protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Findings of Fact The applicant claimed that he is perceived to be a man with ‘sissy’ characteristics and that people on the street would think that he was like a woman in part because his behaviour wasn’t like a man. I accept his claim that people perceive him to have ‘sissy’ characteristics and I equate this with effeminate characteristics. In a written submission the applicant claimed that since high school he suffered from constant and continuous discrimination and harassment such that he was referred to as being ‘morally low and kinky’. He claimed that his parents would approach school authorities but nothing would be done. I accept that the applicant’s youth was coloured by official and social discrimination and harassment. The applicant claimed that his family objected to his sexual orientation so much so that his mother disowned him and his father admonished him not to engage in any homosexual activities. I accept that this happened as claimed. He claims that he worked [for] [number] years. Originally he began as an ‘ordinary staff’ member. In 1997 his boss wanted to promote him to a[senior role], but workers objected because he was too feminine. Since leaving [that job] he has been doing part time work. I accept that he was denied promotion. Finding the applicant overall credible, I give him the benefit of the doubt and accept that the reason that he did not receive the promotion was because of the objection by colleagues to him being perceived as effeminate. At the hearing he stated that he first came to Australia in 2008 and stayed 3.5 years while in his application he stated that it was 2009 when he arrived and December 2011 when he returned to Malaysia. He claimed that he returned because he wanted to see if he can get used to life in Malaysia and if the environment had improved. Between his return to Malaysia and coming to Australia the second time he lived in [a town] with his father. He claims that he didn’t apply for protection during the first period in Australia because he [lived] on the farm and didn’t have a chance to learn about other visa possibilities. I accept these statements of the applicant and do not find the discrepancy of dates as a relevant matter.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Findings of Fact The applicant claimed that he is perceived to be a man with ‘sissy’ characteristics and that people on the street would think that he was like a woman in part because his behaviour wasn’t like a man. I accept his claim that people perceive him to have ‘sissy’ characteristics and I equate this with effeminate characteristics. In a written submission the applicant claimed that since high school he suffered from constant and continuous discrimination and harassment such that he was referred to as being ‘morally low and kinky’. He claimed that his parents would approach school authorities but nothing would be done. I accept that the applicant’s youth was coloured by official and social discrimination and harassment. The applicant claimed that his family objected to his sexual orientation so much so that his mother disowned him and his father admonished him not to engage in any homosexual activities. I accept that this happened as claimed. He claims that he worked [for] [number] years. Originally he began as an ‘ordinary staff’ member. In 1997 his boss wanted to promote him to a[senior role], but workers objected because he was too feminine. Since leaving [that job] he has been doing part time work. I accept that he was denied promotion. Finding the applicant overall credible, I give him the benefit of the doubt and accept that the reason that he did not receive the promotion was because of the objection by colleagues to him being perceived as effeminate. At the hearing he stated that he first came to Australia in 2008 and stayed 3.5 years while in his application he stated that it was 2009 when he arrived and December 2011 when he returned to Malaysia. He claimed that he returned because he wanted to see if he can get used to life in Malaysia and if the environment had improved. Between his return to Malaysia and coming to Australia the second time he lived in [a town] with his father. He claims that he didn’t apply for protection during the first period in Australia because he [lived] on the farm and didn’t have a chance to learn about other visa possibilities. I accept these statements of the applicant and do not find the discrepancy of dates as a relevant matter. During the interim period in Malaysia he worked part time 2-3 days per week in a [workplace]. He claims that sometimes he would have to [do certain type of work] and others would joke, ‘see him, he doesn’t have energy to do this type of work.’ He also worked in [another workplace] as [an occupation] but due to his characteristics he claimed that it was difficult to be accepted by people. I accept these claims. I asked the applicant at what point in his life did he come to realize his homosexual orientation? He responded that when he was [age] years old he started having some feelings for boys. He initially thought that he was not a normal person and so he tried to have some relationships with women but he didn’t feel interested. In 2002 he met his partner at a swimming pool. It is the only partner he has had and they have been together for 15 years. I asked whether the swimming pool was a place known to be where gay people congregate to which, he responded that he didn’t know but rather that he went to the swimming pool to swim every week, it just happened that he met his partner there. I accept this narrative as fact.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATION OF CLAIMS AND EVIDENCE Summary of applicant’s claims: The applicant stated that he is a man of ‘sissy’ characteristics and that people believe him to be a woman. They would point at and verbally abuse him when he went out in public. Because of this he has been under considerable stress and feels that he is unable to live in Malaysia. He claims that he wasn’t promoted in a job because of this. He left Malaysia once before remaining in Australia for 3.5 years without declaring himself or claiming protection because he didn’t know the visa system. Upon return to Malaysia he claimed that things hadn’t improved for him and as such he returned to Australia but this time claimed protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Findings of Fact The applicant claimed that he is perceived to be a man with ‘sissy’ characteristics and that people on the street would think that he was like a woman in part because his behaviour wasn’t like a man. I accept his claim that people perceive him to have ‘sissy’ characteristics and I equate this with effeminate characteristics. In a written submission the applicant claimed that since high school he suffered from constant and continuous discrimination and harassment such that he was referred to as being ‘morally low and kinky’. He claimed that his parents would approach school authorities but nothing would be done. I accept that the applicant’s youth was coloured by official and social discrimination and harassment. The applicant claimed that his family objected to his sexual orientation so much so that his mother disowned him and his father admonished him not to engage in any homosexual activities. I accept that this happened as claimed.