1616716 (Refugee)

1616716 (Refugee) [2018] AATA 3087 (2 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616716
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:2 July 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 July 2018 at 6:02am

CATCHWORDS
Refugee – Protection visa – Malaysia – Member leaving criminal gang – Fear of killing – Employment – state protection – Post-divorce financial settlement – Access to a child – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 October 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, arrived in Australia as a holder of [a temporary] visa on 22 April 2016 from Malaysia.
On 18 July 2016 the applicant made an application for Protection visa to the Department of Immigration and Border Protection which was refused on 7 October 2016.
On 10 October 2016 the applicant lodged an application for review with the Tribunal requesting a review of the Department’s decision to refuse the applicant’s application for Protection visa.
On 18 December 2017 the applicant appeared before the Tribunal to give evidence, to make submissions and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English Languages.
The applicant was not represented at the hearing by a legal representative or registered migration agent.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport which was provided to the Department[1], the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Migration Act.
[1] see Department of Immigration & Border Protection File no.[number] Folio [48]
Therefore on the basis of the abovementioned reasons, the Tribunal finds and accepts that the applicant’s identity as claimed.
Applicant’s Migration visa history
The applicant arrived in Australia on 22 April 2016 on [a temporary] visa and on 18 July 2016 he applied for a Protection (Class XA) visa and was granted the associated bridging visa.
Applicant’s background
The applicant [is] [an age] year old Malay national from Selangor, Malaysia. He was married but now is divorced and has a child which his former wife has custody but he has maintenance responsibilities. He is a Sunni Muslim by faith. He also has parents living in Malaysia but no siblings. When he left Malaysia, he was not in any employment but had worked as [an occupation] for [a business] known as ‘[Business 1]’ prior to his marriage.
The applicant told the Tribunal that he had completed his schooling in Malaysia up to and including [a certain year].
The applicant’s claims for protection
The applicant’s claims which were submitted to the Department[2] as part of his Application for Protection visa can be summarised as follows:
§He claims that he left his country because he was a member and was involved in ‘gangsterism in Malaysia’.
§He claims that this group is active in “collecting protection fees, violent and robberies.”
§He claims that he decided to leave the group and this is against the group’s ‘oath’.
§He claims that any person who leaves the group will be killed.
§He claims that if he returns to Malaysia, “gangsterism is still active and they will kill him…”
§He claims that the authorities will not protect him because they are corrupt.
[2] Ibid see Folio [87]
The Tribunal asked the applicant to confirm that the above claim were correct and formed the basis of his claims for protection to be considered by the Tribunal.
In response, the applicant admitted to the Tribunal that what had been written and submitted to the Department as part of his application for Protection was ‘not correct’ and that he wished to tell the Tribunal the real reasons and the ‘truth’ as to why the applicant had decided to come to Australia. Further, the applicant made it clear to the Tribunal that his claims had been written by a ‘…agent…’ (as he was described by the applicant) and this ‘…agent’ was paid a fee for his services amounting to AUD$[amount]. The Tribunal was told that he did not read the document or have it translated for his understanding but signed it and submitted it to the Department. Finally, the applicant told the Tribunal that his only purpose for coming to Australia was to find work and make money in order to assist his personal and family needs in Malaysia.
Applicant’s personal issues in Malaysia
According to the applicant the real issues in Malaysia which concern him were his ability to secure a well-paid employment in order to meeting his growing financial commitments and his on-going concerns with his wife after the divorce involving the maintenance of their child and an on-going financial dispute with his former wife.
The applicant was married, the Tribunal was told, in 2015 and then six months later he was involved in divorce proceedings. As a result of this failed marriage, the applicant [an age] year old child. According to the applicant, his marriage was dealt severe blows because at that time, he had not secured stable employment and had been forced to assist his parents with their [business]. The applicant’s wife made demands for money which the applicant could not meet and he was at a total loss as to how to resolve matters.
Then, according to the applicant his friend (who he did not identify) suggested to him to come to Australia where he would find good work and earn for himself a ‘…good salary…’ After a period of time to consider matters, the applicant told the Tribunal that he decided to leave Malaysia and come to Australia.
What the applicant has been doing since his arrival in Australia?
On arrival in Australia, the applicant told the Tribunal that he found [employment]. Indeed, with that work the applicant was able to pay his child support commitments (approximately RM[amount]/-) which he sent to his former wife.
Over a period of time living and working in Australia, the Tribunal was told that the applicant considered Australia a country with many opportunities for work and a country where people who work earn good wages. Indeed, the applicant told the Tribunal that when he worked for [Business 1] he never earned the amount of money he had succeeded in doing so while in Australia.
Moreover, the major issue which led to his marital problems was that while he was working in Malaysia he was not able to make enough money in order to help his own family and extended family (the applicant’s parents). Hence, the main issue the applicant told the Tribunal he faced in Malaysia was ‘economic’ being the ability to earn a satisfactory wage to meet his financial commitments.
Does the applicant have any fears or concerns if he was to return to Malaysia in the reasonably foreseeable future?
The applicant admitted to the Tribunal that he has a number of issues waiting for him Malaysia. First, he has an on-going dispute with his wife concerning his access to the child of the marriage. The applicant told the Tribunal that since his child had been born [he] had only seen it three times. The applicant’s former wife has continuously placed barriers between him and the child. The applicant was contemplating prior to leaving for Australia bring legal proceeding against his former wife in order to secure better access to the child but that did not occur because he left for Australia. Second, the former wife has been making continuous demands for financial assistance which the applicant is at a loss to meet because he has had very little job security.
Concluding remarks to the Tribunal by the applicant
Overall, the applicant told the Tribunal that he greatly appreciated his stay in Australia. The lifestyle and opportunities in Australia were greater than in Malaysia. By working here, the applicant could go a long way in meeting his financial problems and making a better life for himself.
Currently, the applicant is [working] a thirty-eight hour week and earning for himself approximately AUD$[amount].
If the applicant returns to Malaysia, the Tribunal was told, he would have to find work which would be difficult and his major concerns would be economic.
FINDINGS AND REASONS
The Tribunal accepts that the applicant was faced with a personal crisis as far as it concerned his employment, income-earning capacity and his on-going dispute with his wife concerning access to his child and post-divorce financial settlement.
The Tribunal also accepts that the applicant received advice that there were employment opportunities available in Australia for him and he determined for himself to come to Australia and to maintain himself in paid employment.
It must be stated categorically by the Tribunal that it was assisted in arriving in its decision in this instance by the applicant’s display of truthfulness and sincerity which attached to all the applicant’s responses to the Tribunal’s questions concerning his application for review. It is noted that the applicant told the Tribunal that once in Australia his immediate and only purpose was not to seek protection but to secure the means of earning a living by working at whatever employment was available. Indeed, by working while here in Australia, the applicant admitted to the Tribunal he was able to provide some maintenance money to his former wife for their child. The applicant also admitted to the Tribunal that he was under no threat while in Malaysia. The applicant also admitted to the Tribunal that his application for protection he submitted to the Department was true and did not express his true intentions for leaving Malaysia to come to Australia. In other words, the protection claims included therein (in the application for protection) as composed by an unidentified third person whom the applicant paid – did not express the applicant real reasons and were submitted only as a means to allow the applicant to remain in Australia in order to seek employment and to work in order to meet his financial commitments in Malaysia. Therefore, the Tribunal accepts and finds that the applicant’s admissions that his sole purpose in apply for a protection visa while in Australia was not because he faced a real chance of threats or a real chance of serious harm in Malaysia for any Convention reason if he was to return there but as means for him to secure the ability to remain in Australia to work.
For the reasons given in paragraph [35] above, the Tribunal does not accept that the applicant was forced to flee Malaysia because of any threat or threats he may have faced in that country. Nor does the Tribunal find that if he returns to Malaysia in the reasonably foreseeable future the applicant would face persecution involving serious harm from anyone for whatever reason or reasons. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.
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).
The Tribunal 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 complementary protection criterion. For the reasons given in paragraph [35] above, the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia there is a real risk that he will suffer significant harm for any reason.
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.
Peter Vlahos
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 3087

2 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice