1604711 (Refugee)

[2017] AATA 2154

1604711 (Refugee) [2017] AATA 2154 (15 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604711

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Amanda Paxton

DATE:15 September 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 15 September 2017 at 12:36pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Religion – Christian – Experiencing economic hardship – Seeking employment opportunities in Australia – Relationship in Australia – Credible witness

LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K, 5L, 5LA, 36, 36(2)(a)-(c), 36(2A)-(2B) 36(3), 36(2A), 36(2B), 65, 91R(1), 499

Migration Regulations 1994, Schedule 2

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] October 2015. The delegate refused to grant the visa on the basis that she was not satisfied the applicant was a person to whom Australia owed protection.

3. The applicant appeared before the Tribunal on 12 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Malaysia, there is a real risk that the applicant will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant claims to be a citizen of Malaysia, and provided a copy of his Malaysian passport to the Department, and brought his passport to the Tribunal hearing. The Tribunal is satisfied on the basis of this evidence that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa).

    Third country protection

12. On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.

    The applicant’s personal background

13. At hearing, the applicant told the Tribunal that he was born in [date] in [Sarawak], Malaysia, an area settled by Australian missionaries who introduced the Bible to his father. He stated that he and his family are members of [an] ethnic group and Christian. The applicant stated that he divorced from his [foreign] wife about 14 years ago, and she and their [age] year old son live in [another country].  He has six [siblings]. After leaving school, the applicant undertook a range of [jobs].

14. The applicant came to Australia in 2015, has held several jobs, helps out members of the church with odd jobs, and now lives in [an Australian suburb]. He sought assistance from Red Cross and obtains some Centrelink support.

    Claims and evidence at hearing

15. At hearing, the applicant stated that he had assistance in completing the Protection visa application form and that he has subsequently realised that the claims contained in the form are not correct; that the person assisting him set out other claims. The Tribunal considered the applicant’s evidence to be open and direct and he appeared to be man of genuine faith. On this basis, the Tribunal considered the applicant to be a credible witness.

16. The applicant told the Tribunal that he came to Australia for employment opportunities. He explained that he came from a poor family and it was very difficult to earn a living at home. If God permits and grants him a job, he would be grateful.

17. The applicant stated that he held no fears about returning to Malaysia because he trusts that whatever happens will be God’s will. However, he stated that life would be very difficult for him if he returns because the economy and his family are poor. In Australia, he has financial support and when he has extra money he sends it home.

18. The applicant stated that he would like to be able to remain in Australia where people respect and care for each other The applicant also stated that he hopes to marry someone he has met here, who comes from the same area in Malaysia, and he hopes he can get a job. He would also like to become more fluent in English.

    Assessment of claims

19. The Tribunal has considered the applicant's claim at hearing that he has come to Australia to work and that life is difficult economically in Malaysia. The Tribunal accepts the applicant wants to be able to work in Australia or as long as possible to support his family and to establish a life in Australia. In considering whether the applicant will experience economic hardship on return to Malaysia, the Tribunal has taken account of the following country information, discussed with the applicant, from the Department of Foreign Affairs and Trade (DFAT) relevant to the economic environment in Malaysia:

    ·Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy. In 2015 its GDP growth was five per cent and per capita GDP was over USD11, 000. Since independence, Malaysia has transformed from a commodity-based economy, focused on rubber and tin, to a leading producer of electronic parts and electrical products and exporter of palm oil, oil and gas. Manufactured goods made up 76 per cent of Malaysia's exports in 2012. Malaysia is ASEAN's largest energy exporter and the government's largest revenue source comes from the state-owned oil company Petronas. The 2015-2016 drop in oil price has negatively affected government revenues. Economic growth in 2016 is predicted to be 4 to 5 per cent.

    ·Malaysia's economic growth has led to a significant reduction in poverty with the share of households living below the national poverty line (USD8.50 per day in 2012) falling from over 50 per cent in the 1960s to 0.28 per cent in 2016.

    ·In December 2015, the Malaysian Department of Statistics reported a labour force participation rate of 67.8 per cent and an unemployment rate of 3.3 per cent. The most recent national survey (2014) reported that the male labour force participation rate was 80.4 per cent and the female participation rate was 53.6 per cent. Malaysia's female participation rate was the lowest in Southeast Asia. Urban-based females in Malaysia had a higher rate of participation (48.5 per cent), compared to their counterparts in the rural areas (41.2 per cent). In early 2014, the Government introduced policies to ensure equal pay for equal work and programs to promote full and equal participation by women. 58 per cent of the Malaysian labour force has secondary level education, 13.2 per cent has primary level education and 2.6 per cent have no formal education, based on the most recent available statistics published in 2010,²

20. As discussed with the applicant, the country information cited above indicates that the Malaysian economy is growing at between 4-5 per cent per annum and the unemployment rate is 3.3 per cent. In considering the applicant’s claims, the Tribunal notes the applicant has held a range of jobs in [Malaysia]. The Tribunal accepts the applicant may not be able to earn as much in Malaysia and acknowledges that economic and employment conditions do not offer the opportunities that they do in Australia. However, noting the relevant country information regarding Malaysia's generally positive economic performance, and the applicant's past employment history, the Tribunal is satisfied the applicant will be able to obtain employment and support himself at a basic level in Malaysia. In addition, the Tribunal has had regard to s.91R(1) of the Act and found that the applicant’s fear is not for one or more of the five reasons set out in s.5J(1) of the Act. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution arising from his economic circumstances. For the same reasons, the Tribunal finds there are not substantial grounds for believing that there is a real risk of the applicant will suffer significant harm upon being removed from Australia to Malaysia.

21. The Tribunal has considered that the applicant has established a life for himself in Australia and has aspirations to marry someone he has met here, to find work and to learn English. The Tribunal acknowledges the applicant has developed strong ties in Australia, especially through the church, and that he aspires to find employment, improve his English and to marry. However, the Tribunal finds that these matters do not have a nexus to one or more of the reasons in set out s.91R(1) of the Act. On this basis, the Tribunal finds the applicant does not have well-founded fear of persecution. Having regard to the definition of significant harm set out in ss.36(2A) and (2B) of the Act, the Tribunal finds there are not substantial grounds for believing that there is a real risk of the applicant will suffer significant harm upon being removed from Australia to Malaysia for these reasons.

22. On all the evidence before it, the Tribunal does not accept the applicant has a well-founded fear of persecution for economic or any other reasons now or in the foreseeable future on return to Malaysia.

23. For the reasons set out above, the Tribunal does not accept there are substantial grounds for believing that there is a real risk that the applicant faces significant harm on return to Malaysia.

    CONCLUSION

24. 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).

25. 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).

26. 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

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

    Amanda Paxton
    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.

    …