1605309 (Refugee)

[2017] AATA 3100

1605309 (Refugee) [2017] AATA 3100 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605309

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Amanda Paxton

DATE:7 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 07 June 2017 at 9:15am

CATCHWORDS
Refugee – Protection visa – Social group – Homosexual – Unemployed – Economic hardship

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499

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 on 15 April 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 on 19 January 2016.

3. The applicant appeared before the Tribunal on 6 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

4. At the request of the applicant, she was supported at the Tribunal hearing by her [friend].

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. In her Protection visa application the applicant declared that she left Malaysia because:

    ·     The applicant’s employment was terminated and it is now hard to get work; and

    ·     The applicant is lesbian and faces pressure, discrimination and persecution from the society and the religious department.

12. In oral evidence at the hearing on 6 June 2017, the applicant told the Tribunal that she did not complete the application herself because her English is poor, but had the assistance of a friend. She stated that she did not tell her friend what to write and she does not know if the claims are correct.

13. The applicant stated that in Malaysia it was increasingly difficult economically and she came to Australia initially as a visitor for sightseeing and experience. While here, she decided she wanted to apply to remain in Australia where she has fewer economic difficulties and can work, earning more than in Malaysia, towards achieving her goal of owning a house and car.

14. When the applicant made no reference to difficulties for any other than economic reasons, the Tribunal noted that in her application there is reference to the applicant experiencing hardship in Malaysia arising from her sexuality as lesbian. The applicant told the Tribunal this was not correct.

    Country of nationality

15. The applicant claims to be a citizen of Malaysia, and provided a copy of her Malaysian passport to the Department, and brought her 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 her 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

16. 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.

    Findings and reasons

17. 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) 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 her 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.

18. The Tribunal considered the applicant was open, sincere and credible in her oral evidence to the Tribunal. On this basis, the Tribunal accepts the applicant’s evidence that she was born in Penang in [year] and that this has been her home throughout her life; that she is of Malay ethnicity and adheres to Islam.  The Tribunal accepts the applicant is single, that her parents have passed away, and that three of her ten siblings have also passed away.

19. On the same basis, the Tribunal accepts the applicant’s evidence that after finishing school she commenced work as an [occupation] in a factory and later was employed for three years in a better paid job with [Company 1] as an [occupation].

20. The Tribunal accepts the applicant then started work with [Company 2].  She explained that [Company 2] were based on Penang Island, so it was more convenient, and that this job was an upgrade in her career because the work was more sophisticated. The Tribunal accepts the applicant resigned from [Company 2] in 2015 after [number] years, taking voluntary separation from [Company 2]. These were offered at this time because the Malaysian economy had deteriorated and the offer provided a good payout considering the economy at the time.

21. The Tribunal accepts the applicant’s oral evidence that she then found other factory work but this was shift work where she worked twelve hours per day in a rotation of day shift and night shift. Although she got three days off, she did not get enough sleep and it was not a stable life. The Tribunal accepts the applicant looked for a day job and got another job but it was not paid well, and she resigned from the job, again with a voluntary separation payment.

22. The Tribunal accepts the credible evidence of the applicant that she came to Australia for a holiday and sightseeing and found she preferred being in Australia over Malaysia because she found Australia calm and peaceful, the air clean and people friendly.

23. The Tribunal accepts the applicant has been living in [City 1], working part time to cover living expenses food and rent. 

24. The applicant claims that she faces economic difficulties on return to Malaysia because in Malaysia because the money is never enough because costs continue rising while wages remain the same, and the Tribunal has considered whether the applicant has a well-founded fear of persecution or a real risk of significant harm on return to Malaysia for this reason. The applicant claims that on return to Malaysia she will not have enough money to achieve her goals.

25. As above the applicant told the Tribunal that it was not correct that she needed protection on return to Malaysia for reasons of her sexuality as lesbian. The Tribunal accepts the applicant’s oral evidence in this case, and has therefore not addressed this issue.

    Economic hardship

26. In considering the applicant’s claim that she will experience economic hardship, 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. [1]  

    [1] DFAT Country Information Report, Malaysia, 19 July 2016.

27. The Tribunal notes the applicant is concerned about getting a job that will enable her to achieve her economic goals. 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 this assessment the Tribunal takes into account the applicant’s evidence to the Tribunal that since finishing school, she has obtained extensive and steady, employment experience as [an occupation] in factories. The Tribunal notes the applicant’s evidence that she worked for [number] years for [Company 2] and that she left this role voluntarily, as she did her future roles. Noting the relevant country information regarding Malaysia’s generally positive economic performance, and the applicant’s consistent employment history, the Tribunal does not accept the applicant will not be able to obtain an income from employment on return to Malaysia. While the applicant’s income in Malaysia may not be such as to enable her to buy a house a car, the Tribunal notes that prior to coming to Australia it was sufficient to live modestly and save enough to come to Australia for a holiday. The Tribunal finds the applicant will have sufficient income such that she will have the capacity to subsist. In addition, to the extent that the applicant would suffer any economic difficulties, the Tribunal also finds that there is nothing in the applicant’s evidence to suggest that these would be for any of the reasons set out at s.5J(1)(a). Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons. Further, having regard to the definition of significant harm in 36(2A) of the Act, the Tribunal finds that the applicant does not have a real risk of significant harm on return to Malaysia on this basis.

    Lifestyle

28. The applicant indicated that she wants to remain in Australia for lifestyle reasons; that she much prefers it here because it is calm and peaceful and the air is clean, and she has a fuller life compared to Malaysia.

29. The Tribunal acknowledges the applicant’s preference to remain in Australia because she prefers the lifestyle and environment. The Tribunal has considered 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), on this basis, and finds this claim does not engage any of the five reasons under s.5J(1) of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds the applicant does not have a well-founded fear of persecution for this reason. Having regard to the definition of significant harm in s.36(2A) of the Act, the Tribunal finds that the applicant’s preference to remain in Australia rather than return to Malaysia for these reasons does not constitute significant harm as exhaustively defined.

    Conclusion

30. 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).

31. 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).

32. 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

33. 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.

    …