1617329 (Refugee)

[2017] AATA 3180

1617329 (Refugee) [2017] AATA 3180 (29 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617329

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Lilly Mojsin

DATE:29 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 29 March 2017 at 10:58am

CATCHWORDS
REFUGEE – Protection visa –– Federal Circuit Court appeal – Malaysia – Race – Chinese – Claims of persecution due to race – No state protection – Did not attend hearing – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H(1), 5J(1), 5K-LA, 36, 65, 441A, 426A, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 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 on 15 August 2016. The delegate refused to grant the visa on 29 September 2016.

3. The applicant appealed that decision to this Tribunal on 19 October 2016.

4. The applicant was invited to a hearing to be held on 22 March 2017 at 9.30am. The hearing invitation also stated that if the applicant is not able to attend the hearing he should advise the Tribunal as soon as possible. The hearing invitation also advises the applicant that if the applicant does not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it, or may dismiss the application for review without any further consideration of the application or the information before the Tribunal. Tribunal staff, in addition, sent 2 SMS reminders to the applicant’s mobile phone reminding the applicant of the scheduled hearing.

5. The applicant did not attend the scheduled hearing and has not provided any communication to explain his non-attendance.

6. Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

7. I find the hearing invitation, which was sent to the applicant's email address, was given to a relevant person, the applicant, by one of the methods in s441A and that the prescribed period of notice has been given. In these circumstances, pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

   CRITERIA FOR A PROTECTION VISA

8. See Annexure A

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant’s claims are contained in department file [number].

   In his PVA the applicant said that he worked in a [company] and he was threatened and blackmailed. He said that in October 2015 he and his friend were asked to [work somewhere] and after their arrival at the [location] a group of Malaysians came, asked him and his friend which company they belong to and they became mad shouting at them. They asked for protection fees and when they didn’t receive any money stole the applicant’s tools and threatened them. They hit and kicked them to the ground and cut his friend’s neck with a knife. When they asked the Malaysians about the tools, they hit them again, verbally abused them and did not give them back. They reported the incident to the police who just gave them a record and asked them to leave. A Chinese policeman told them that the underground and the police are friends and they should leave quickly or they would tell the underground and report them to the police. They were again stopped on the road, they were hit and they had their photos taken, they were threatened. They were told that their photos would be in every gang member’s phone, it was called a “blacklist”.  They came to Australia and cannot go back to Malaysia, their members are everywhere and police would not help them either.

   REASONS AND FINDINGS

10. On the basis of his Malaysian passport, I accept that the applicant is a national of Malaysia and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Malaysia. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Malaysia is the applicants’ “receiving country” for the purposes of s.36(2)(aa).

11. Given the applicant's non-appearance, there has been no opportunity to explore or test the claims made to the Department.

12. The applicant is an ethnic Chinese. Malaysians of Chinese descent represent approximately 25 percent of the population[1]. Chinese Malays dominate the business sector. The Malaysian Chinese Association (MCA) is a political association which is part of the governing National Front (Barisan Nasional, BN), a coalition of 15 parties. Malaysia has known relative peace amongst its ethnic communities since riots against the Chinese minority occurred in 1969. Minorities are free to practise their culture and religion without restrictions and that the government does not impose restrictions in the field of education.

    [1] MYS102643.E from the Research Directorate, Immigration and Refugee Board of Canada, Reports of discrimination against Malaysians of Chinese descent (June 2004 - October 2007)

13. Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia[2]. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia. Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors. The majority of ethnic Chinese are concentrated in the west coast states of Peninsula Malaysia with significant percentages (30% and above) living in the large urban centres, including Kuala Lumpur, Penang, Johor, Perak and Selangor. Malaysian Chinese freely participate in political life and are represented by ministers in the current cabinet and in opposition parties.

    [2] DFAT Country Report: Malaysia, Department of Foreign Affairs and Trade, 19/07/2016

14. The Royal Malaysian Police (RMP) report to the federal Minister for Home Affairs and is responsible for law enforcement nationwide[3].  DFAT[4] reports that the Malaysian police are generally considered to be a professional and effective police force.

    [3]

    [4] DFAT Country Information Report , Malaysia , 19 July 2016

15. Malaysia has a working criminal law and legal system and the provision of a reasonably effective and impartial police and justice system exists[5]. English common law is the basis for the secular legal system. The constitution states that all persons are equal before the law and entitled to equal protection of the law. Defendants are presumed innocent until proven guilty. Trials are public, although judges may order restrictions on press coverage. The government and officials may be sued in court for alleged violations of human rights.

    [5]

16. Without further information from the applicant I am unable to be satisfied that he worked for a [company] and that he was attacked with a knife, threatened and blackmailed. I am unable to be satisfied that he was harassed, attacked, verbally abused and that these incidents were reported to the police or that he was threatened with being placed on a blacklist or that his photo was in the mobile phone of people who had threatened and assaulted him.

17. I am not satisfied on the information before me that the applicant suffered any serious harm, amounting to persecution for one or more of the reasons mentioned in paragraph 5J(1)(a) ie for a refugee criterion reason, in Malaysia prior to leaving Malaysia.

18. I am required to consider if there is a real chance the applicant would suffer serious harm or a real risk the applicant would suffer substantial harm, in the future, if he were to return to Malaysia.

19. I have considered the applicant's claims and evidence individually and cumulatively.

20. The applicant claims that the authorities do not protect him or the ethnic Chinese. As stated above, the Malaysian police are generally considered to be a professional and effective police force. I am satisfied that the Malaysian state has put in place reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and judicial system. The independent evidence indicates there is a functioning police force and an independent judicial system where members of the judiciary are accountable for their decisions on appeal[6]. I am satisfied that there are avenues of complaint available for Malay citizens, if required.

    [6] DFAT Country Information Report , Malaysia , 19 July 2016

21. As I am not satisfied that the applicant suffered any serious harm in Malaysia, I find that the applicant does not have a real chance that, if returned to Malaysia, he would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicant does not have a well-founded fear of persecution for these reasons.

22. 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).

23. I have considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).

24. I am not satisfied that the applicant suffered any harm in Malaysia. The applicant did not attend the Tribunal hearing. I am unable to explore with him the substantial harm he fears.

25. I do not accept on the evidence before me, therefore, 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    Conclusion

26. 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).

27. 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

28. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Lilly Mojsin
    Member

    
    

    Annexure A

    CRITERIA FOR A PROTECTION VISA

29. 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.

30. 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.

31. 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).

32. 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.

33. 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

34. 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.

    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.

    …