1616817 (Refugee)

[2017] AATA 2205

1616817 (Refugee) [2017] AATA 2205 (3 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616817

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Mila Foster

DATE:3 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 03 November 2017 at 2:26pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Failed to attend tribunal hearing – Anti-government – Objection to a development project – Credibility concerns

LEGISLATION
Migration Act 1958, ss.36, 5AAA, 5H, 5J, 65, 426, 441, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (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. 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).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] November 2015. The delegate refused to grant the visa because he found the protection claims made by the applicant were fabricated.

3. On 5 October 2017 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 1 November 2017. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice.

4. No response was received to the invitation and the applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, I am satisfied that the review applicant was properly invited to the hearing by means of email via his authorised recipient in accordance with s.441A(5) and s.441G of the Act. There is nothing before me to indicate that the email was not delivered. The review applicant has not provided any contact telephone numbers to the Tribunal and has not contacted the Tribunal to explain his non-appearance. In these circumstances, and pursuant to s.426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

   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. 

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’).

   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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such guidelines in relation to Malaysia on 19 July 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The claims and evidence before me consist of the applicant’s protection visa application and the claims and evidence he presented during an interview with the delegate [in] July 2016. According to the protection visa application, a registered migration agent assisted the applicant with his protection visa application. A recording of his interview with the delegate is on the Department file. He was interviewed with the assistance of a Mandarin speaking interpreter and stated that he could not speak English.

12. According to the protection visa application, the applicant applied for protection so that he did not have to return to his country of nationality, Malaysia. The application included a copy of two pages of his Malaysian passport and a personal statement written in English. In the statement he said, in summary, that he organised protest activity and wrote an open letter regarding his objection to a development project in [Malaysia]. He said the project developer lobbied the government to imprison opponents and the police searched his house and confiscated his computer. He said he could not return to Malaysia because the government would kill him.

13. At the interview, the applicant presented his Malaysian passport and Malaysian ID card, copies of which are on the Department file before me. He made additional claims during the interview. In summary, he indicated that Malaysia was generally not a safe place, there were many social problems, and he was anti-government. He mentioned the government getting people to cause trouble and destroy property, and the police not doing anything about it. He said the police ignored reports of theft. He also referred to an incident that occurred around election time when the government arranged for a lot of Indonesians to be bussed into Malaysia to vote for the government. He said that when he, along with others, tried to block the roads, instead of helping them the police beat them and helped the people being bussed in. The applicant said he had to leave Malaysia because he had fought against the police and some of his friends had already been arrested. He said that if he returned he may be arrested, beaten by the police and imprisoned. He indicated that the police had his photograph and he may be on a blacklist. He also expressed concern about the Malaysian government finding out about his claims. Asked about the personal statement, the applicant stated that he did not write it and did not know what was in it. He indicated that he told his migration agent what he had told the delegate and was unaware what his migration agent had included in his protection visa application.

14. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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.)

15. I accept on the basis of the applicant’s Malaysian passport and ID card that he is a national of Malaysia. I note that the delegate did not accept that the applicant was a national of Malaysia for reasons which included the applicant’s apparent lack of knowledge of Malaysian geography and inability to speak Malay. In light of the responses the applicant gave on this issue during the interview and the absence of any evidence that the passport and ID are not genuine, I accept that the applicant is a national of Malaysia.

16. However, the applicant’s protection claims lack detail and clarity. Firstly, as the applicant is not aware of the contents of the personal statement submitted on his behalf by his migration agent, it is unclear to what extent the personal statement accurately reflects his claims. For example, the applicant stated during the interview that he was not aware of any open letter, or the Johor Assembly, Second National Physical Plan or Town and Country Planning Act referred to in the statement.  Thus, on the evidence before me, it is unclear whether the applicant objected to the [project] and whether he had any of the problems claimed in the statement as a result of objecting to the project.

17. Secondly, the claims the applicant made during the interview about Malaysia being unsafe and having social problems, the government getting people to destroy property, and the police not acting on reported thefts were very general and did not indicate if or how he was harmed in the past as a result of those circumstances or what harm he might face in the future for those reasons.

18. Thirdly, the applicant’s account of the incident he claimed to have been involved in with the police lacks detail. For example, he did not specify where the incident occurred, how many people were involved, how he was beaten or what injuries he sustained. He did not detail how it seems he managed to escape the scene without being arrested or how the police came to have his photograph. Nor did the applicant detail any other possible anti-government activity. Finally, the applicant did not detail how the Malaysian government could find out about his claims.

19. As the applicant’s protection claims lack clarity and detail and are assertions which I have not tested, I do not accept them. That means I do not accept the applicant objected to the [project], wrote an open letter, organised protest activity or engaged in any other activity connected to the project. I do not accept that the police searched his house, confiscated his computer, or have any interest in him due to the [project]. Nor do I accept that the applicant was involved in a fight with police when the government tried to bus Indonesians into Malaysia to vote in elections or that the Malaysian government is or could become aware of his claims. Thus, on the evidence before me, I am not satisfied that the applicant is on a blacklist, faces arrest or imprisonment or any form of serious harm or significant harm in Malaysia for reasons related to the [project], an incident involving Indonesians being bussed into Malaysia to vote, because he is anti-government, because of the claims he has made, for reasons related to the safety or security conditions in Malaysia, or any other reason connected to the police or government in Malaysia.

20. Thus, on the evidence before me, I am not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I 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 the applicant will suffer significant harm. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or under s.36(2)(aa).

21. 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

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

    Mila Foster
    Member