1605238 (Refugee)

1605238 (Refugee) [2017] AATA 2994 (14 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605238
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:14 December 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 December 2017 at 11:57am

CATCHWORDS
Refugee – Protection visa – Malaysia – Fears for children’s safety – Former attempts at kidnapping her child – Unwilling to relocate – Ignored by police – Failed to attend hearing
LEGISLATION
Migration Act 1958, ss 5AAA, 5H,5J, 5K-LA, 36, 65, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] April 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Malaysia, applied for the visas [in] January 2016 and the delegate refused to grant the visas on the basis that application for protection submitted to the Department did not satisfy sub-section 36(2) of the Act.
For the purposes of this decision, the Tribunal will make reference herein to the first-named applicant, [name] (as the applicant) and any reference to others as the ‘applicants’.
[In] April 2016 the applicants submitted to the Tribunal their application for review of the delegate’s decision to refuse their Application for Protection visa.
[In] July 2017 the Tribunal wrote to the applicant that it considered all the material before it relating to her application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in her case at the hearing on 21 August 2017. The letter advised that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The letter also advised the applicant that if she was not able to attend the hearing she should advise the Tribunal.
On 2 August 2017 the primary applicant wrote to the Tribunal making it known to the Tribunal that due to the applicant’s illness because of her pregnancy she would be unable to attend the scheduled hearing and requested the Tribunal to adjourn the hearing to a later date.[1]The Tribunal agreed to the applicant’s request for an adjournment.
[1] AAT File No. 1605238 Folios 20-33 which comprise of the applicant’s email and medical reports
On 21 August 2017 the Tribunal wrote to the Tribunal proposing that a hearing of the primary applicant’s and applicants’ application be held on 28 September 2017. In response to the Tribunal’s letter, the applicant submitted medical certificates from treating medical practitioner advising that the applicant was again ill and unable to attend the re-scheduled hearing.[2] The Tribunal agreed to the applicant’s second request for an adjournment.
[2] AAT File No. 1605238 Folios 30-48
On 14 November 2017 the Tribunal wrote to the Tribunal proposing that a hearing of the primary applicant’s and applicants’ application be held on 14 December 2017. As noted from the Tribunal’s file, the applicant was also sent to her mobile phone two reminders concerning the scheduled hearing on 7 December 2017 and 13 December 2017.
No response to this letter or to the Tribunal’s SMS mobile phone reminders was received from the applicant and the applicant did not attend the hearing invitation scheduled for 14 December 2017. As the applicant has not responded to the invitation to attend a hearing, and has not contacted the Tribunal to explain her non-attendance or sought to engage further in the review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is Australia has protection obligations in respect to applicants. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on a copy of the applicants’ passports, which were provided to the Department of Immigration & Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicants are all nationals of Malaysia and have had their claims assessed against that country in relation to sections 36(2) (a) and 36(2)(aa) of the Migration Act (the Act).
On the basis of the abovementioned evidence, the Tribunal further accepts the applicants’ identity as claimed.
Claims
The applicants’ claims[3] were set out in his application for protection visa and are summarised as follows:
§She (primary applicant) left Malaysia because she felt insecure about her [child]. Within 9 months of [child]’s birth there had been two attempts at kidnapping [the child]. The first was when [child] was [age] and a “Chinese-look lady” (sic) tried to take [child] from her [sibling]’s arms and the second was when they were dining in a restaurant and a woman took her [child] and tried to run away with [the child]. She feels her family is no longer secure.
§If she were to return to Malaysia she thinks that she will have these bad experiences again. Also, their home is [close to] [a certain area], an area where there are many smugglers kidnapping children and babies. The number of kidnapping cases keeps increasing each day and she thinks is a suspect because she has a baby.
§She called the police station after the second attempt or kidnap of her [child] but she did not have a CCTV record or any other proof. She moved from her husband’s home to her parents’ home after the first incident, but then the second incident occurred.
§She has a strong instinct that if she returns to Malaysia the same thing will happen. She was ignored by an irresponsible police officer and does not have a report.
§She does not think she is able to relocate in Malaysia as both her and her husband’s family are from the same area. She hopes to get a Protection visa so that her [sibling], her husband and she can work.
[3] AAT File no.1605238 folio 1 to 7
The Tribunal finds the applicant’s claims are vague and lacking in detail.
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material before it in relation to her application but it was unable to make a favourable decision on the information alone. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with her and sought further information from him on a range of details relevant to her claims. For example, the Tribunal would have asked the applicant to explain in detail why third persons were targeting her and her children? The Tribunal would have asked for example the applicant to explain the significance of her claim that she resided so close to [a certain area] and how that created problems of security for her and her young family. Also, the Tribunal would have asked the applicant to provide details as to why the local police had not intervened to provide her with the protection she had sought from them.
Moreover, the applicant also claimed for example that ‘relocation’ was not a worthwhile option for her to take in order to make her family more secure but provided no reasons why this was the case except to state that both applicant’s and her husband’s families lived in the ‘same area’. Finally, the applicant provided very little detail as to why she and her entire family came to Australia? No information was provided by the applicant on whether she explored alternatives and whether she believed that the Malaysian authorities were incapable of providing substantial protection for the applicant and her family members from kidnappers.
Finally, if the applicant had attended the scheduled hearing, the Tribunal would have discussed in detail and sought the applicant’s views on the country report on Malaysia prepared by the Department of Foreign Affairs and Trade (DFAT) where it is reported that that despite continuing concerns about corruption within the Malaysian police, in recent years that police force had instigated and pursued a very rigorous campaign against the criminal syndicates.[4]
[4] Department of Foreign Affairs and Trade County Report- Malaysia, 19 July 2016, see paragraphs [5.5] to [5.8] pp.25-26.
On the basis of the above available evidence, the Tribunal does not accept that the applicants suffered threats of having her children abducted by kidnappers while in Malaysia and does not accept as a result of this attempted kidnappings (as she claims) would face physical harm if she and her family returned to Malaysia.
Considering the applicant’s and her family’s individual circumstances, on a cumulative basis, the Tribunal finds there is no real chance that, if they returned to Malaysia in the reasonably foreseeable future, they would be persecuted for any reason. The applicant’s fear is not well-founded as required by s. 5J of the Act and therefore she and her family members are not a refugees within s.5H of the Act.
Considering the applicant’s individual circumstances and that of her family members, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant and her family members being removed from Australia to Malaysia there is a real risk they will suffer significant harm.
Conclusions
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).
The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Vlahos
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.
…

[2017] AATA 2994

14 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice