1607692 (Refugee)

[2017] AATA 3177

1607692 (Refugee) [2017] AATA 3177 (15 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607692

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Suhad Kamand

DATE:15 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2017 at 9:21am

CATCHWORDS
REFUGEE – Protection visa –– Federal Circuit Court appeal – Malaysia – Political opinion – Anti-government opinions – Credibility issues – Did not attend hearing – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H(1), 5J(1), 5K-LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant, a male national of Malaysia, arrived in Australia on 14 March 2016 holding an Electronic Travel Authority subclass 601 visa which ceased on 14 June 2016. He has not held any substantive Australian visa since that time and has not departed Australia since that entry. He applied for the Protection visa the subject of this review on 7 April 2016. A delegate of the Minister for Immigration refused to grant the visa on 26 May 2016 and the applicant sought this Tribunal’s review of that decision.

2. The applicant was invited by the Tribunal to appear before it on 14 February 2017 to give evidence and present arguments. He did not respond to that invitation and did not appear before the Tribunal at the time and place scheduled.

3. On the basis of all the evidence before it and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

4. Relevant law has been included at Appendix 1.

   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. Generally, the issue for the Tribunal is whether the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations.

12. The applicant’s express claims and those arising on the evidence are that he faces a real chance of serious and/or significant harm in Malaysia in connection with expressing concern to and about the current Malaysian Government.

13. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or under complementary protection. The applicant provided the Tribunal with a copy of that decision record. 

14. The Tribunal must generally assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm if he returns to Malaysia. If the Tribunal is not satisfied that he is a refugee, it must then consider whether he is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that he faces a real risk of significant harm in Malaysia for any of the reasons claimed or arising on the evidence.

15. The applicant’s circumstances in Malaysia, generally, are set out in his Protection visa application form to the following effect: he was born in Sabah, Malaysia, in [year]; he is a Malaysian citizen, as are both of his parents; he has never been a citizen of any other country; he speaks, reads and writes in the Bahasa Malaysian and English languages; he is of the “Sabah Etnic” ethnic group and “Kristian” religion; he has never been married or in a de-facto relationship; he identifies a friend [as] a contact in Australia; he indicates that he contacts his family in Malaysia once a week by phone[1]; he holds a Malaysian passport issued in [2015] on which he departed Malaysia for Australia legally on 13 March 2016; he has previously travelled to [one country] on two occasions, once between 7 and 10 March 2016 and once on 14 February, both to “visit friend”, and he also holidayed in [a second country] on 14 and 15 February 2016[2].

    [1] Folio 57, [file number]

    [2] Ibid, folio 51

16. Regarding his previous addresses in Malaysia, he identifies only one being in Sabah, where he lived from January [year] until February 2016[3].

    [3] Ibid, folio 50

17. Regarding his employment, he identifies only that he worked from January 2016 to the current time [in a] Business in Sabah, Malaysia[4]. Prior to this he identifies attending high school from January [year] until November [year].

    [4] Ibid, folio 48

18. His claims for Australia’s protection are set out in his Protection visa application form to the following effect:

    a.He left Malaysia for Australia as he felt unsafe in Malaysia;

    b.A few months earlier he “had spoken with the political party the government of Malaysia to date, related to the government’s problem is now in a state of corruption and political uprisings”;

    c.From that day “I always receiving threats by politicians who do not responsible, would trouble me if I speak out against the government’s political party the current Malaysia government”.

    d.He adds that “there are also friends and Malaysian others participated expression, the is a threatened and killed without evidence by certain parties that are not in the know, therefore I fear the matter, the same will happen to me, and I make decision to flee”.

    e.Regarding what may happen to him if he returns to Malaysia he states “I think, if I return to Malaysia may be, the harm will happen to me, because now there are many cases that occurred in Malaysia, those who speak out against political parties, government Malaysian now, they’ll arrest to prison and tortured or shot dead without who lakukanya evidence (sic), such things are happening, without coming out in the news or social media” [5]

    [5] folio 45

19. There is no evidence before the Tribunal that the applicant participated in a Department interview in respect of his claims for Australia’s protection.

20. By letter dated 19 January 2017, sent to the applicant by email, the Tribunal invited the applicant to appear before it on 14 February 2017 to give evidence and present arguments at a hearing. That letter was sent to the applicant’s nominated email address and informed the applicant that the Tribunal is unable to make a favourable decision on the information before it; and if he does not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear; or his application may be dismissed without further consideration. The applicant was also sent SMS hearing reminders to his last known mobile phone number, reminding him of his upcoming hearing. Those SMS’s were sent to the applicant on 7 February 2017 and on 13 February 2017.

21. The applicant did not respond to the invitation to appear and did not appear before the Tribunal at the time or place scheduled. The applicant has not made any contact with the Tribunal to explain his non-appearance at his scheduled hearing. Accordingly, the Tribunal has proceeded to finalise the review on the evidence before it.

22. The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk or arising, or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

23. For the purposes of section 36(2)(a) the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a specified reason if he returns to his country. For the purposes of s.36(2)(aa) (‘the complementary protection criterion’) the Tribunal must determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Malaysia, there is a real risk that he will suffer significant harm. On the evidence provided, the Tribunal cannot be satisfied about significant aspects of the applicant’s circumstances, such as: his current personal and family circumstances in Malaysia; any relevant matters which have transpired regarding his claims since he lodged his application; the nature of any harm he continues to fear in the reasonably foreseeable future and the motivations for the harm he claims to fear.

24. It follows that, on the information before it, the Tribunal cannot be and is not satisfied that: the applicant faces a real chance of persecution involving serious harm in Malaysia for a specified reason now or in the reasonably foreseeable future. Accordingly, the Tribunal cannot be and is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution in Malaysia.

25. For the same reasons, on the evidence before it, the Tribunal cannot be and is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) (‘the complementary protection criterion’).

    Conclusions

26. 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).

27. 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).

28. 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

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

    Suhad Kamand
    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.

    …