1606330 (Refugee)

1606330 (Refugee) [2017] AATA 3187 (15 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606330
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:15 March 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 March 2017 at 10:37am
CATCHWORDS
REFUGEE – Protection visa –– Federal Circuit Court appeal – Malaysia – Threats from loan shark – Parents and siblings applying for protection – No longer dependant of parents – Credibility issues – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 on 18 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of the Federation of Malaysia (Malaysia), applied for the visa on 2 March 2016. The delegate refused to grant the visa on the basis that the receiving state is willing and able to offer effective protection against protection to the applicant anywhere within that state.
The applicant attended a scheduled hearing on 2 March 2017 in Melbourne. The applicant was not represented and did not have any witnesses attending. The applicant was assisted by an interpreter in the Bahasa Malaysia and English languages.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed:
Background
The applicant was born on [date] in Klang in the Malaysian state of Selangor and claimed to be a citizen of the Federation of Malaysia.
Certified copies of the applicant’s passport and national identification card are on departmental file.[1]
[1] DIBP Folio 44-46
The applicant claimed that his mother and his father were both born in [Country 1] and subsequently became citizens of Malaysia.
The applicant claims that he has three siblings: two brothers and one sister. He claims that his sister and one of his brothers are living with him and his parents in Australia, while the eldest brother was living and working in Malaysia.
The applicant claimed that he can speak, read and write in English and Bahasa Malaysian; that he can understand [Country 1 language]; and that he claimed to belong to the Islamic faith tradition.
THE applicant arrived in Australia while holding a [temporary] visa on 2 December 2015 and lodged an application for a class XA subclass 866 protection visa on 2 March 2015.
According to the applicant’s 866 form, the applicant departed Malaysia to join his parents in Australia and he left Malaysia because he does not want to return to his home country as his applicant’s parents applied for protection visas on 1 May 2015. The applicant claimed that he could not return to his country of nationality because there is a person seeking his father who may kidnap the applicant as a way ‘to get to his father’. The applicant has been staying with his aunt for the six years during his [school] study and his aunt’s neighbours told him that a suspicious looking person was looking for his father. The applicant claimed that he cannot rely on his aunt’s family for too long and burden them with the issue.
The applicant claimed that there was an incident almost ten years ago but he cannot remember it well. The applicant claims to have recalled that someone came to the home of the applicant’s family, called out is father’s name and scolded his father in a loud voice. Otherwise the applicant claimed that he was too young to seek help and was sent to live with is aunt. The applicant added in his written claims that his father had made a police report but nothing changed. He claimed he is likely to experience physical harm and verbal harm and possibly kidnapping and adds the relocation is not possible elsewhere in Malaysia because he does not have the courage, money or a plan to relocate.
According to the same form, the applicant claimed that he visited [Country 1] in December 2012; [Country 2] in August 2013 and [Country 3] in early 2014. He also claimed that he has lived in four different residential addresses in Selangor during his lifetime while in Malaysia.[2]
[2] DIBP Folio 29
The Minister’s delegate refused to grant the applicant a protection visa on 23 February 2016 on the basis that effective protection against persecution was available to the applicant.
The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal with the decision record attached.
The applicant attended a scheduled hearing on 2 March 2017 and was assisted by an interpreter in the Bahasa Malaysia and English languages.
The applicant did not have any witness at the scheduled hearing. At the end of the hearing, the applicant did not seek additional time for any post hearing submissions.
The applicant claimed at the time of visa application for a protection visa and at the scheduled hearing that his mother and his father were currently living in Australia while their protection visa was being processed. The applicant also claimed that two of his sibling, a brother and a sister, were waiting for their protection visa to be processed.
At no stage during the review application, including right up to the time of making this decision did the applicant submitted any documents to substantiate his claims.
Country Information: Royal Malaysian Police
The Tribunal noted country information about police in Malaysia, and the steps being taken by the police to stop violence associated around money lending. In its 2016 Country Information Report – Malaysia, DFAT provide an overview of law enforcement in Malaysia:
5.1 Law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The National Department of Islamic Development (JAKIM) enforces sharia law and has jurisdiction over Muslims in Kuala Lumpur and the two other federal territories. The RMP and JAKIM operate independently and only occasionally work together.
Credible local and international sources consider the RMP to be a professional and effective police force.
• RMP officers receive limited training, particularly on human rights.
• Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern.
• The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP[3]
[3] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July
In its Country Reports on Human Rights Practices for 2015 the USDOS reported:
The Royal Malaysia Police (RMP) is a national police force that is well trained and equipped… However, the RMP is sometimes limited in its effectiveness in investigations.[4]
[4] US Department of State 2016, Malaysia 2016 Crime and Safety Report, 29 February, p.11
In its 2016 Country Information Report – Malaysia, DFAT noted a royal commission into the operation and management of the RMP prompted the Malaysian government to implement reforms aimed at addressing corruption within the RMP:
5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.[5]
FINDINGS AND REASONS
[5] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July, section 5.6,
Country of nationality
The applicant claims to be a citizen of the Federation of Malaysia and provided a copy of his passport to the Department with his application, and brought the passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia and that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility Findings
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
The Tribunal accepts the following aspects about the applicant’s background to be credible:
·The applicant was born in Klang to parents of [Country 1] origin;
·The applicant was a minor at the time of this protection visa was lodged with the Department but has since reached the age of majority;
·The applicant’s parents[and] two of his three siblings have all applied for protection visas since arriving in Australia while the applicant’s eldest sibling remains in Malaysia, based on his written claims.
·The applicant’s religion is Islam;
·The applicant currently resides with his parents since his arrival in Australia;
·The applicant speaks, reads and writes in Bahasa Malaysia and English and can converse in [Country 1 language], as claimed at the scheduled hearing;
·The applicant does not have a disability;
·The applicant has limited education and has not completed secondary college either in Malaysia or Australia; and
·The applicant is not married or in a de facto relationship and does not have any children.
During the hearing, the applicant provided some inconsistent travel history information than what was recorded in his 866 Form; nevertheless the Tribunal accepts that the applicant has visited [Country 3], [Country 1] and [Country 2] with parents at various times for short periods between 2012 and before the applicant departed.
Between 2005 and the date of his departure in late 2015, the applicant claimed has not resided with his parents on a permanent or ongoing basis but resided mainly with his [aunt] and on-campus accommodation. The applicant claimed that he visited his parent about once every week or fortnight and said that such visits were not regular. The Tribunal asked if that meant his usual residence was with his parents or his aunt; the applicant responded that he felt he was a dependent on his parents as he was required to live with his aunt for fear of being kidnapped and that felt that he still need to live with his parents. As discussed during the scheduled hearing, the applicant’s [aunt] appeared to be the primary care giver. The Tribunal accepts that the applicant irregular visited his parents while they resided in the Malaysian state of Selangor in the last five or so years prior to the applicant’s departure and that he currently resides with his parents. However based on the information before it, the Tribunal finds that the applicant has not spent his formative years since he was six or seven years of age with his parents and that his aunt living in Klang in the Malaysian state of Selangor had been the applicant’s primary carer and guardian.
In this case, the Tribunal assesses that the applicant has more often than less provided consistent claims between what has been written at the time of application and his oral testimony during the hearing, with respect to his father borrowing money from an unlicensed money lender in 2004 and that there was a disturbance at their home where abuse was directed at the applicant’s father. The applicant claimed that as he was growing up that he was not tell others about the whereabouts of his parents. During the scheduled hearing the applicant, the applicant claimed that his parents complained to the police about being pursued by an ah long or loan shark and that a police report was generated. However it was further claimed that the police did not investigate the complaint and the police recommended departing Malaysia for reasons of safety. During the scheduled hearing, the applicant further claimed that this occurred in the period just prior to his parent’s departure from Malaysia to Australia and he advanced the reason for this police inaction was because the applicant’s parents were [ of Country 1] in origin.
The Tribunal notes that, during the scheduled hearing, the applicant could not recall if the disturbance was at his parent’s place or his aunt’s. It is accepted that the applicant was very young at the time and naturally had difficulties recalling details.
The Tribunal assesses the applicant’s account of the critical reasons for leaving and being unwilling to return to Malaysia were very limited. For instance, the applicant was unable to describe the amount his father owed an unlicensed money lender or the ethnicity of the loan shark. The applicant also mentioned that his sister was unable to elaborate on any details about the loan shark. Furthermore the applicant did not claim that he was ever directly threatened or harmed.
During the scheduled hearing the Tribunal outlined some its concerns about the applicant’s claims:
Firstly it was discussed that while he was living with his [aunt] at Klang in the Malaysian state of Selangor that he visited his parent in the same area, albeit irregularly. Given the parents feared serious or significant harm arising from a loan shark against themselves or their children, the Tribunal asked the applicant whether such visits put the applicant in risk. Second the Tribunal mentioned that given his parents had lived in the same residence in the last five years prior to their departure and said that might indicate to the Tribunal his parents did not have an urgent fear. Thirdly, the Tribunal also outlined its concern that the applicant travelled outside of Malaysia with his parents only to return to the same areas where it was claimed a violent loan shark was operating. Fourthly, the Tribunal asked for the reasons the applicant and his family did not depart for Australia considerably earlier than 2015, given there was debt owing since 2004 or 2005. The applicant responded to these concerns to mention that he generally resided away from his parents, that he visited because he missed them and that the whole story had not been retold by his parent to him. He was also unable to provide a reason for this parents not remaining in another country when they had the opportunity or departing for Australia considerably earlier. In this regard, the Tribunal notes that the applicant has a brother who remains in Malaysia.

When the Tribunal asked to the reasons his parents had not relocated considerably further than Selangor or to the reasons the applicant could not relocate to another part of Malaysia, the applicant responded stated that the information he is sharing is from his parents, that the loan shark can find him anywhere in Malaysia and that he started a new life in Australia.
Based on the credibility of the applicant as a reliable witness, the Tribunal accepts that there was a home-invasion incident in 2004 or 2005 and that such men spoke in loud voices targeting his father. It also accepts that there were historical outstanding debts and the incident did partially explain the relocation of the applicant to his aunt’s home in 2004.
However taking all the Tribunal’s credibility concerns the applicant’s written and oral evidence about his and his family’s residential and travel into account, the behaviour outlined above, cumulatively considered over a ten year period, does not demonstrate to the Tribunal that any of the family members acted, either voluntarily or on the advice of an elder, to have commensurately avoided the grave threats of harm arising from a loan shark, as claimed, by either significantly and urgently relocating within Malaysia or departing Malaysia altogether at a point considerably earlier than 2015. Accordingly, the residential and travel histories of the applicant and the applicant’s parents do not plausibly or credibly indicate to the Tribunal that they had an actual or well-founded fears of a loan shark at the time of departure for Australia or at the time of the applicant’s protection visa application with the Department.
The Tribunal has also considered the credibility of the applicant’s derivative claims from his parents that the police would not investigate threats from any unlicensed money lender. At the scheduled hearing, the applicant claimed that his parents sought the protection of the Royal Malaysian Police in the days or weeks prior to their departure for Australia and that the police informed his parents they would not investigate further and the police advised for the applicant and his family to depart Malaysia. This was based on the information his parents had relayed to her. As discussed during the hearing, the Tribunal accepts that a police report was submitted to the Tribunal outlining his parent’s complaint and it was this encounter with the police which was claimed triggering impetus for their departure. The applicant further added that by the applicant that the police were not interested in the complaint due to his parent’s [Country 1] origin.
The Tribunal, however, does not accept the applicant’s claim which is derivative from his parent’s claims. As discussed during the hearing, the applicant submitted the delegate’s decision record which had considerable country information including from the Department of Foreign Affairs and various media about the police in Malaysia taking very seriously the authorities. The country information strongly indicates the practice of unlicensed money lending was subject of police investigations and prosecutions across Malaysia and that it would be unlikely that the police would not further investigate complaints against ah long activities or loan sharks of any ethnicity anywhere throughout Malaysia or to recommend to complainants to depart Malaysia for their safety. There is no indication that the Royal Malaysian Police do not investigate such complaints based on race or any other criteria.
This country information invites the Tribunal to consider that the police complaint raised by the applicant, while actually generated, was done so for migration purposes and not because they had a long standing fear of an ah long since around 2004. Had the applicant’s parents held a genuine fear of a violent loan shark strongly motivated to recover an outstanding debt, it would be have been reasonable for the applicant’s parents to have sought the assistance of the authorities considerably earlier that the day or weeks before their departure, regardless of their ethnicity. In this regard, it is noted that the applicant did not submit any alternative country information.
In the context of the Tribunal’s earlier adverse credibility concerns, including that no earlier police report had been lodged, the Tribunal does not accept that the applicant’s claim, albeit derivative from his parents’ claims for protection, that the police report which the Tribunal has accepted was issued, was not genuinely lodged with the Malaysian police based on any actual fear of a criminal organisation of any kind but for migration purposes. Based on the same adverse credibility concerns and country information about the police being strongly motivated to investigate and charge unlicensed money lenders, the Tribunal does not accept the applicant’s parents were advised to depart Malaysia for their safety and the safety of their children, including the applicant, by anyone in authority and it does not accept that the actual triggering event of the applicant or any of his family member’s departure for Australia was related to any outstanding debts, historical or otherwise. Based on the same country information and the Tribunal’s adverse credibility findings, it also does not accept the applicant or his family members would be denied any effective protection from persecution by anyone in authority based on the ethnicity or any other related reason outlined in s.5J(1)(a) of the Act, anywhere within Malaysia, including in the applicant’s home state of Selangor.
It follows from these findings that the Tribunal accepts the applicant’s parents and aunt had informed the applicant, his siblings and the children of the aunt not to disclose the whereabouts of the Tribunal’s parents because the Tribunal finds the applicant to have been an overall reliable witness. However the Tribunal does not accept the claimed reasons which were derivative from the applicant’s parents for this discretion to be credible based on the Tribunal’s adverse credibility findings above. For the same reasons, it also accepts that neighbours and suspicious people may have asked the applicant about the whereabouts of his father in the past. However the Tribunal does not accept that such questions about his father’s whereabouts were related to any outstanding debts, historical or otherwise, owed to any criminal organisation operating within Malaysia.
The Tribunal makes a further finding that the applicant’s parents encouraged the applicant to unknowingly or unwittingly mislead the Tribunal as well as the Department for migration purposes and not because the applicant’s parents had any genuine or personally held fears of persecution if the applicant returned to his home state of Selangor or anywhere within Malaysia in the reasonably foreseeable future.
The Tribunal notes the applicant’s comments that he wants to remain with his parents, that he would experience some emotional hardship if he returned without his parents and that he was unsure he would be able to stay with his aunt as she had her own familial responsibilities. The Tribunal accepts that there is a real chance the applicant will return without his parents and there would be some material or emotional hardship entailed in doing so. However the applicant is an adult without a disability and his immediate and extended family have supported the applicant in the past as well as during his current studies. There is no suggestion to the Tribunal that this support would end, even if the applicant had to live separately from family members, as a young single man, if he had to return to Malaysia in the reasonably foreseeable future. While the Tribunal does accepts that the applicant will have a real chance or a real risk of material or emotional hardship in returning to Malaysia, it accordingly does not accept the harm will amount to serious harm or significant harm.
The Tribunal also notes that the applicant did not claim that he or his other family members were targeted by a loan shark because their religion, their political opinion, their ethnicity or any other reason mentioned in s.5J(1)(a) as the essential and significant reason for his parents being targeted but based on the applicant’s membership of a family with outstanding debts to an unlicensed money lender, as required by s5J(4).
The Tribunal accepts that the applicant’s claimed fears that he would be personally targeted if he returned or that that effective protection from persecution or significant were not available were relayed to him by his parents. This was acknowledged by the applicant several times during the scheduled hearing. In this regard, the Tribunal finds that the applicant had some genuine personally held fears that he will face persecution based upon a dimly remembers memory and his trust, misplaced or otherwise, in his parents. Based on the adverse credibility findings above, the Tribunal does not accept there were any credible reasons for those claimed fears about his parent’s debts at the time of his departure from Malaysia, at the time of his application for a protection visa with the Department, now or into the reasonably foreseeable future.
Accordingly, the Tribunal finds that those fears of persecution arising from the applicant’s claims about any of his family members owing recent or outstanding debts to any criminal organisation or unlicensed money lenders for any of the reasons outlined in s.5J(1)(a) are not well-founded, if the applicant were to return to his home state of Selangor or anywhere within the Federation of Malaysia in the reasonably foreseeable future.
Furthermore there are no credible or actual reasons for the Tribunal to accept that the applicant will be denied effective protection from persecution based on the reasons outlined in s.5J(1)(a) anywhere within Malaysia in the reasonably foreseeable future, as required by s.5J(2).
Cumulative Findings
Having the considered all the accepted personal circumstances of the applicant and the relevant available country information, the Tribunal does not accept that the applicant has a real chance of serious harm on return to Malaysia arising from any of his parent’s owing money to an unlicensed money lender, based on his ethnicity, his religion or his status as a young single man or a combination of these characteristics or any other reasons outlined in s.5J(1)(a), now or into the foreseeable future.
Having considered the applicant’s claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution and does not satisfy s.36(2)(a).
Further, having considered the accepted circumstances of the applicant and relevant country information before it, the Tribunal find that there are no substantial grounds for believing that there is a real risk the applicant will suffer significant harm of any kind outlined in s.36(2A), as a necessary and foreseeable consequence of being removed from Australia to the Federation of Malaysia.
Member of the Same Family Unit
It is noted that the applicant’s sister had also applied for a protection visa which is or has been subject to merits review (Case number: 1602742). It was claimed that one of his brothers had also applied for a protection visa. According to the applicant’s 866 form, these other applicants are not minors; they are not married or in a de facto relationship and they share the same biological parents as this review applicant. No evidence has been provided about this request and the applicant did not advance an argument that his sister and brother are a dependent on the applicant or vice versa during the hearing. The Tribunal has no substantial reasons for it to believe that the applicant or his sister is dependent upon each other that would satisfy any of the subregulations to r.1.12 of the Regulations. Therefore, regardless of the outcome of the protection visas pertaining to his other siblings in Australia, he will not satisfy s.36(2)(b) or s.36(2)(c).
The Tribunal accepts that the applicant has an interest in his parents claiming to be a member of the same family unit as him. If protection visas were granted to one of his parents on the basis they are owed Australia’s protection visa obligations and that the applicant is found to be a member of the same family unit by satisfying regulation 1.12 of the Regulations, the Tribunal is obliged to consider that this application under review remitted for reconsideration on the basis that the applicant satisfies s.36(2)(b) or s.36(2)(c).
Clause 1.05A(2) defines a dependent, for the purposes of a protection visa application, as a person who is wholly or substantially reliant on the other person for financial, psychological or physical support.
To this extent, the Tribunal accepts that the applicant is the biological daughter of [his parents] who are both nationals of Malaysia, have applied for protection visa applications and currently residing in Australia (case number: 1515850)
While at the time of the applicant’s visa application with the Department, the applicant has subsequently reached the age of majority since his review application had been lodged. Accordingly, at the time of the decision the applicant is aged [age] years of age and no longer a minor. The applicant, accordingly, does not satisfy being a dependent child of the family head as required by subregulation 1.12(4) as he is not a child.
The Tribunal has considered whether the applicant is a relative of the family head who does not have a spouse or de facto partner; and is usually resident in the family head’s house; and is dependent on the family head, as required by subregulation 1.12(4)(d). While the Tribunal accepts that the applicant is not married or in a de facto relationship and is a close family relative of [his parents], it does not accept the applicant is a dependent of the claimed family head. The applicant does not claim to have any disabilities and can read and write in Bahasa Malaysian and English. Since arriving in Australia, the applicant has enrolled in [an educational institution] [to] complete his studies and that he is currently residing with his parent. It is accepted that the applicant currently materially relies on his parents who are working in Australia while their visas are being processed. However this material reliance is recent and not born out any physical, emotional or psychological impairment or incapacity. While it is accepted that the applicant has not undertaken paid employment in the past, the Tribunal assesses that the applicant has the capacity to find employment and earn money in his own right, as many Malaysian men of the applicant’s age and limited education do. It was acknowledged by the applicant during the scheduled hearing and it is accepted by the Tribunal that the applicant, while living in Malaysia, had not resided on a permanent basis with his parents since 2005 or since he was about six or seven years of age and that he spent his formative years with his aunt. It is appreciated that the applicant does not want to be separated any further from parents. However, taking into account all the relevant factors, including the history of the applicant’s relationship with his parents, his residential history back in Malaysia, his age and his capacity to work, the Tribunal does not accept the applicant is usually a resident with his parents. For these reasons, the Tribunal finds that the applicant is not wholly or substantially emotionally, psychologically, financially or any in manner dependent on his biological mother and his biological father and is not usually resident in the family head’s house. Therefore the applicant does not satisfy subregulation 1.12(4).
Having considered all the relevant information and based on its findings pertaining to subregulations of r.1.12, the Tribunal does not accept the applicant is a member of the same family unit in accordance of regulation 1.21 of the Migration Regulations with his biological parents who are currently in Australia. Therefore, regardless of the outcome of the protection visas pertaining to his parents, he will not satisfy s.36(2)(b) or s.36(2)(c).
The Tribunal, accordingly, finds that the applicant does not satisfy 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.
Conclusion
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 finds that the applicant does not satisfy 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
Member

Brendan Darcy
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 3187

15 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Natural Justice