1615398 (Refugee)

1615398 (Refugee) [2017] AATA 1442 (9 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615398
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:K. Chapman
DATE:9 August 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 August 2017 at 6:44pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnic Malay – Member of Bersih group – Credibility issues
LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 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 Malaysia, applied for the visa [in] May 2016. His written claims essentially concern that he is involved in the ‘Bersih’ group which advocates for fair elections in Malaysia and as a result he will face arrest, imprisonment or a fine if he returns to that country. The delegate refused to grant the visa, not accepting the veracity of the applicant’s claims. On 21 September 2016, the applicant applied for review of the protection visa refusal decision. He provided a copy of that decision to the Tribunal.
The applicant appeared before the Tribunal, by video link from the [city] Registry, on 13 June 2017 to give evidence and present arguments. The review hearing was conducted using the assistance of an interpreter in the Malay and English languages. The applicant confirmed he understood the interpreter and that he was feeling well enough to give evidence.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Malaysia. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3).
Issues
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 him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
Documentary evidence before the Tribunal
The Tribunal has before it the Department and Tribunal files relating to the applicant. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application forms submitted [in] May 2016 (including extracts from his passport, and a copy of his Malaysian Identity Card);
b.the Departmental delegate’s visa refusal decision dated [date] September 2016 (a copy of which was provided to the Tribunal by the applicant);
c.the application for review submitted on 21 September 2016; and
d.Departmental administrative and Movement records.
Claims for protection
The applicant’s written claims for protection are as follows:
a.“I leave the country because the Government is now looking and chasing after me. They are looking for me because I’m one of the member of the “Bersih” association. This assembly group exists as Malaysia’s electoral systems are unfair. This is caused by the Government itself. The assembly group also talking for human rights in Malaysia. Malaysian Government does not at all provide space for Malaysians to speak or enforcing rights as citizen. Group gathering “Bersih” also denied a number of laws that are enforced by the Government of Malaysia”;
b.if returned to Malaysia he fears “I would be arrested by the authorities. Now the police are looking for anyone who joins the “Bersih” rally group. The Malaysia Government does not like those who oppose their ideas or change the current legislation that has been set by them. The Government wants anyone who joins this group gatherings to be imprisoned or to pay a big amount of fine” and “As I mentioned above, the imprisoned and fine me on the offences scared me a lot not only on the high fine charges but I also had to undergo a painful imprisonment.” He answered ‘No’ to Question 91 of Part C to the protection visa application which asked, ‘Did you experience harm in that country(s)?’;
c.he purportedly cannot seek help from authorities in Malaysia as, “This is because the authorities themselves who seek expert group of “Bersih” rally. So under the direction of his own Government, the authorities of my country will not tolerate with anyone who joins the “Bersih””; and
d.he purportedly cannot relocate within Malaysia to avoid feared harm because, “Even though in any way, I still cannot run anywhere in Malaysia as part of this case has been throug (sic) out the country which also involving the publication of the case in newspaper. So of course the Government is still able to find me no matter where I hide in that country” and “Because the authorities can still find me even though I have been relocate within Malaysia.”
Evidence at the review hearing
The applicant’s evidence may be summarised as follows. Initially, he advised the Tribunal that he received assistance from a [friend] in completing the application for protection. The applicant advised this friend wrote the application and explained it to him. The applicant agreed with its contents, signed it and indicated it contains accurate information. The applicant explained that he worked in [an occupation] for around [number of] years prior to coming to Australia, he is married and has a child in Malaysia, and that his family is experiencing economic hardship as he has only found part time [work] in Australia. The applicant confirmed he departed Malaysia using his own passport at Kuala Lumpur International Airport and he experienced no difficulty in doing so. The reason given by him for coming to Australia was to seek work in order to improve his family’s economic position. He outlined that due to his low level of education he could not obtain satisfactory work in Malaysia. The applicant claimed that he did not commence work in the [sector] in Australia until he obtained a Bridging visa in association with his application for protection. In addition, he stated that he was aware he could not work in Australia as the holder of a [temporary] visa.
When asked by the Tribunal what he feared if returning to Malaysia, the applicant indicated he was concerned that he would find it difficult to obtain work. He confirmed to the Tribunal there was no other reason he feared returning to that country. Further, the applicant indicated he applied for the protection visa in order to obtain work rights in Australia and for no other reason. In addition, he advised that he only sought protection after [his friend] suggested he do so. When asked by the Tribunal to outline his involvement with the Bersih group, which formed the basis of his written claims for protection, the applicant initially advised that political problems raised ethnic tensions in Malaysia, ethnic Malays are wage earners, and as an ethnic Malay he could not obtain higher managerial positions as they are given to other ethnicities. When further asked by the Tribunal to outline his role in Bersih, the applicant admitted that he was never a member of that group, never publicly protested against the Malaysian government, has never been arrested or imprisoned, the Malaysian authorities are not searching for him, he does not fear the Malaysian authorities if he returns to his country, and he does not fear arrest or being fined in Malaysia.
The applicant then informed the Tribunal that he was unaware of the written claims made in his protection visa application as he paid [his friend] $[amount] to write them. The applicant confirmed that he did not know why Bersih was stipulated in his written claims and that he was never involved with that organisation. Further, the applicant told the Tribunal that he did not face any danger in Malaysia and that he lodged his claim for protection so he could work in Australia and for no other reason. He confirmed the written claims related to Bersih were untrue. The Tribunal raised with the applicant that his evidence tended to suggest he did not satisfy the refugee or complementary protection criteria and invited his comment. He responded that he did not have anything to say and would accept the decision of the Tribunal. In addition, the Tribunal drew to the applicant’s attention that his evidence he cannot obtain suitable work in Malaysia, and he came to Australia for economic reasons, did not tend to suggest he satisfied the refugee or complementary protection criteria and invited his comment. He again replied he did not have anything to say and would accept the Tribunal’s decision. The Tribunal raised with the applicant that it had serious concerns regarding the credibility of his claims for protection and invited his comment. The applicant indicated he did not wish to respond. The Tribunal again outlined the refugee and complementary protection criteria to the applicant and noted his evidence tended to suggest he did not satisfy the definition of either category, inviting his comment. The applicant indicated he had nothing further to say.
Analysis
The Tribunal has very carefully considered the applicant’s claims and the evidence before it. In his oral evidence, the applicant admitted that he was never connected to the Bersih movement, which was the basis of his written claims. In addition, he admitted paying [his friend] $[amount] to write them. Accordingly, the Tribunal finds that the applicant was never connected to the Bersih movement and does not accept the veracity of his written claims for protection made on that basis. For completeness, the Tribunal notes the applicant gave oral evidence confirming he had never protested publicly against the Malaysian government and was not the subject of any adverse attention from the Malaysian authorities for any reason. Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of political opinion (or for any other of the reasons mentioned in s.5J(1)(a) of the Act), or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm, in relation to the aforementioned matters.
As detailed above, the applicant informed the Tribunal that his intention in coming to Australia was for employment reasons in order to build a better life for his family. He agreed that he left Malaysia with the intention to work in Australia, knew that he could not do so on a [temporary] visa, and applied for a protection visa in order to obtain work rights. The Tribunal notes the applicant claimed at one point during the review hearing, and not in his written claims, that political problems in Malaysia raised ethnic tensions, ethnic Malays are wage earners and they are not considered for higher managerial positions which are given to other ethnicities. The Tribunal is prepared to accept the applicant holds the view that he can achieve a better economic outcome by working in Australia rather than remaining in Malaysia. However, the Tribunal does not accept that the applicant’s circumstances are any different to the wider ethnic Malay population residing in Malaysia (which is the largest ethnic group in that country), nor does it accept that the aforementioned claim raised by him at the hearing regarding his inability to obtain desirable employment amounts to a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that Australia’s protection obligations are invoked on the basis of that claim.
CONCLUSION
Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
K. Chapman
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 1442

9 August 2017

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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