1604817 (Refugee)

[2016] AATA 4174

1604817 (Refugee) [2016] AATA 4174 (28 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604817

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Susan Pinto

DATE:28 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 28 July 2016 at 3:03pm

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. The applicant is a citizen of Malaysia. He is [age] years of age. He is from Sabah. He arrived in Australia on a [temporary]) visa [in] February 2015. He resided in Australia unlawfully from [may] 2015 until he was granted a Bridging visa in association with this application [in] January 2016.

2. The applicant applied to the Department of Immigration for the Protection visa [in] January 2016. The applicant essentially claimed that as a result of his involvement in criminal gangs, and his refusal to be a “scapegoat” for the gangs, he will be harmed upon his return to Malaysia. The applicant claims that the police refused to assist him.

3. The delegate refused to grant the Protection visa. The delegate stated that the applicant’s claims did not meet the Refugee Criterion as his claims were not related to one of the five specified reasons. The delegate also found that the applicant could obtain protection from the police in Malaysia and his circumstances did not therefore give rise to a real risk that he would suffer significant harm as required by the Complementary Protection Criterion. 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).

4. The Tribunal must consider whether the applicant meets the Refugee criterion set out in s.36(2)(a) of the Migration Act. If the Tribunal finds that the applicant does not meet the Refugee criterion which requires that he fears persecution for one of five reasons, it is necessary to consider whether he meets the Complementary Protection criterion in s.36(2)(aa) of the Migration Act. This requires the Tribunal to consider whether there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Malaysia, that there is a real risk he will suffer significant harm (see attachment for further details of the legislation).

   CLAIMS AND EVIDENCE

5. The applicant indicated on the application form that he speaks, reads and writes Malay. He stated that his occupation is “[occupation]”. The applicant’s parents and [sibling] reside in Sabah, Malaysia. The applicant indicated that he completed his secondary school education in Sabah in November [year].

6. In response to questions on the application form as to why he left Malaysia, the applicant stated that when he was “young and naïve” he joined the [a gang] in Malaysia. The applicant thought he could make money by joining, but he did not make any money. The gang often fights and after a struggle he was asked to be a “scapegoat”. The applicant did not want to go to jail so he left the gang. They did not want him leave the gang and they caught him. After that time he had no choice but to leave the country. The applicant states that the [gang] will catch him and hit him and force to be a scapegoat and he will have to go to jail.

7. The applicant states that he experienced harm in his country from the [gang] who beat him seriously. The applicant was almost blind in his eye and his chest was injured, his back was bleeding and they used a steel stick to hit him. The applicant stated that he reported it to the police, but when they heard it was the [gang] they refused to help him and would not allow him to stay in the police station. The applicant cannot live anywhere else in Malaysia because the [gang] has members and branches all over the country.

8. On 3 June 2016, the Tribunal wrote to the applicant and invited him to appear before the Tribunal on 28 July 2016 to give evidence and present arguments. The hearing invitation was sent to the applicant’s e-mail address which was provided to the Tribunal. The applicant did not provide any telephone numbers to the Tribunal. The applicant was advised in the hearing invitation letter that if he does not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

9. The applicant did not appear before the Tribunal on 28 July 2016 and did not contact the Tribunal to explain his non appearance or to request that the hearing be postponed. In these circumstances and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   Is there a real chance that the applicant will suffer persecution or is there a real risk that the applicant will suffer significant harm in Malaysia?

10. The Tribunal is satisfied on the basis of the applicant’s passport that he is a citizen of Malaysia and has assessed him against that country for determining both whether the applicant has a well founded fear of persecution for the purposes of s.36(2)(a) and for determining his “receiving country” for the purposes of s.36(2)(aa).

11. The Tribunal has first considered whether there is a real chance that the applicant will suffer serious harm if he returns to Malaysia. The applicant has claimed that he has and will be sought in Malaysia for his refusal to continue his involvement with a criminal. He claims that he has previously been harmed by members of the gang and the police refused to assist him.

12. The Tribunal accepts the evidence set out in the delegate’s decision record which indicates that extortion and threats of violence occur in Malaysia. However, the Tribunal considers that the applicant’s claims are brief and lack detail. The Tribunal would have wished to explore in considerably greater detail the applicant’s claims in an attempt to determine when the events he has described occurred; who were the perpetrators; and why he claims he was unable to provide police assistance. As indicated above, the applicant did not avail himself of the opportunity to appear before the Tribunal. Without the ability to explore his claims in significantly greater detail at a hearing, the Tribunal is not satisfied on the evidence before it that the applicant has ever been harmed or sought by criminal gangs in Malaysia or that there is a real chance he will suffer persecution for this reason or any of the other five reasons if he returns to Malaysia. The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution if he returns to Malaysia now or in the reasonably foreseeable future.

13. The Tribunal has also considered whether there is a real risk that the applicant will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal has found above that the applicant’s claims are brief and lack detail and that it would have wished to explore his claims in significantly greater detail at a Tribunal hearing. However, as stated above the applicant has not availed himself of the opportunity to appear before the Tribunal. The Tribunal is not satisfied on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

    CONCLUSIONS

14. 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).

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). The Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. 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

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

    Susan Pinto
    Member

    
    

    CRITERIA FOR A PROTECTION VISA

18. 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.

19. 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.

20. 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).

21. 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.  

22. 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

23. 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.

    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.

    …