1617961 (Refugee)

[2017] AATA 3172

1617961 (Refugee) [2017] AATA 3172 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617961

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Peter Vlahos

DATE:7 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 07 June 2017 at 8:25am

CATCHWORDS
Refugee – Protection Visa – Malaysia – Particular social group – Lesbian women in Malaysia – Where applicant claims to fear harm from authorities and family members - Applicant did not attend hearing – Insufficient evidence to substantiate claims – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), 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 dependan

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 13 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. On 18 April 2016, the applicant, who claims to be a citizen of Malaysia, applied for the Protection visa.  

3. On 13 October 2016, the delegate of the Minister for Immigration and Border Protection (the ‘Department’) refused to grant the visa.  

4. On 28 October 2016 the applicant applied for review to the Tribunal of the Department’s decision to refuse to grant a Protection visa.

5. On 5 May 2017 the applicant appeared before the Tribunal to give evidence and to present arguments. However the hearing was adjourned and rescheduled for 6 June 2017 in order to provide the applicant with time to prepare her arguments and submissions.

6. On 8 May 2017, the Tribunal wrote to the applicant that it had had considered all the material before it relating to her application and was ready to proceed with the hearing. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising from her case at the hearing, on 6 June 2017. The letter advised that if the applicant did not attend the re-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 the Tribunal. The letter also advised the applicant that if she was not able to attend the hearing she should advise the Tribunal as soon as possible. As noted from the Tribunal’s file, the applicant was also sent to her mobile two reminders concerning the scheduled hearing on 30 May 2017 and on 5 June 2017.

7. No response to the Tribunal’s letter and SMS mobile phone reminders was received from the applicant and the applicant did not attend the hearing invitation scheduled for 6 June 2017. As the applicant has not responded to the invitation to attend a hearing, and has not contacted the Tribunal to explain her non-attendance or sought to engage further in the review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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

14. 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

15. Based on the copy of the applicant’s passport, which provided to the Department of Immigration and Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had her claims assessed against that country in relation to sections 36(2)(a) and 26(2)(aa) of the Migration Act (as amended)(the Act).

16. On the basis of the abovementioned evidence, the Tribunal further accepts the applicant’s identity as claimed.

    The applicant’s claims

17. The applicant’s claims were set out in her application for Protection visa. The applicant stated that she had married and divorced and had [children]. Her bitter experience in her married life caused her to hate men. Currently, she is in a relationship with a woman and she is ‘bisexual’ and identifies as a ‘lesbian’. The applicant claims she has been in a same-sex relationship for the five years. She also claims LGBTI people have no rights in Malaysia and she has been humiliated by her neighbours and workmates. These circumstances make her uncomfortable and she has found it difficult to live a normal life. The applicant also claims that LGBTI people in Malaysia are ‘considered a social problem.’ This has forced her to live her relationship discretely because she did not wish to bring shame upon her family or feel the disapproval of her friends. The applicant believes that if she was to return to Malaysia, she will be prevented from living a normal life because of her LGBTI status and because of the societal intolerance directed against her. Also, the applicant claims that her partner’s brother and sister have discovered her relationship, have suffered violence as a result of this discovery and has been threatened that her same-sex relationship will be revealed to her elderly parents if she chooses to continue with her current partner. Finally, the applicant did not seek help in Malaysia because help and assistance to lesbians is not available and she could not relocate to another part of Malaysia because it would be too disruptive for her children. She fears that if she returns to Malaysia, she will face fines, long prison terms and physical punishment.

    Assessment of Claims of the applicant

18. The Tribunal finds the applicant’s claims are vague and lacking in detail.

19. Section 5AAA of the Migration Act (as amended) (the ‘Act’) makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to person in respect to whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to establish, or assist in establishing, the claim.

20. The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all material before it in relation to her application but it was unable to make a favourable decision on the information. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with her and sought further information from her on a range of details relevant to her claims. For example, the applicant had made vague and unsubstantiated claims to fearing her return to Malaysia; including vague references to her developing and maintaining her homosexual relationship, a number of threats against the applicant by family and community members and the fear of her parents becoming aware of her same sex relationship with her partner. In the applicant’s statement of claims, she does not mention any names, including that of her same sex partner. Neither does the applicant provide any information as to how threats of harm were made to the applicant or provide any clear timeline with even approximate dates of events and incidents.

21. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reason’s 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 that the applicant to satisfy the Tribunal that all the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant herself.

22. The Tribunal has a number of issues upon which it requires a good deal more detailed evidence, such who the applicant feared and why she was fearful, before it could be satisfied that the applicant is in genuine fear of persecution. For instance, the Tribunal would have asked the applicant whether she had encountered difficulties and harm as a woman transitioning herself (as she claimed) from a being a heterosexual to a homosexual woman prior to her departure from Malaysia. The Tribunal would have asked the applicant what particular difficulties she endured and why she claimed that if she returned to Malaysia in the reasonably foreseeable future she would not be able to live a normal life because she would have to do so only by being discrete in her relationships. The Tribunal would have also sought for a clearer time-line of events, including who and when the applicant formed the relationship with her current partner with whom she has been in a relationship for the past five years.

23. Had the applicant attended the hearing she could have explained to the Tribunal the reasons she does not have any supportive witness statements. The Tribunal notes the applicant did not formally respond to hearing invitations indicating that witnesses were to provide oral evidence in support of the applicant’s claims.  Had the applicant or witnesses attended the scheduled hearing, the Tribunal would have enquired into which friends typically attended social events with the applicant as well as other aspects of her personal life, including how she socialised with her friends and her partner of five years.

24. In particular, the Tribunal would have asked why her alleged same-sex partner had not provided a statement or attended the hearing to provide oral evidence to support the applicant. Had the applicant attended the hearing, the applicant would have been provided the opportunity to substantiate her claims with a post-hearing submission. In not meaningfully participating in the Tribunal’s decision-making strongly indicates to the Tribunal that the applicant does not hold a genuine fear of persecution arising as lesbian (a member of the LGBTI community) or in a same-sex relationship as claimed.

25. Had the applicant attended the scheduled hearing, the Tribunal would have enquired in detail why the applicant did not relocate to another part of Malaysia and to the reasons she could not relocate without having an appreciable risk of being seriously or significantly harmed or that it was not reasonable, in the sense of being practicable, to do so.

26. Had the applicant attended the hearing, the Tribunal would have asked the applicant for the reasons she had not applied for a protection visa as soon as she arrived in Australia given the applicant’s claim that she had developed and been in a same-sex relationship for five years and had left Malaysia because of fears of societal mistreatment, harm and persecution. The Tribunal would have sought reasons why the applicant waited for a period of seven (7) months before applying for a Protection visa.

27. Cumulatively, the lack of evidentiary and no oral evidence strongly suggests to the Tribunal that the applicant’s very limited claims to being a lesbian and a member of the LGBTI community in Malaysia or having past or current lesbian relationships that were known to members of her partner’s family and community are not genuine; that there was no past threats conveyed to the applicant; that the applicant will not be imputed as being a lesbian or for breaching Malaysia’s Penal Code in this regard; and that the applicant is not ostracised from her family, friends and Muslim community, either in Australia or anywhere in Malaysia.

28. In addition to its vague, ill-defined and unsubstantiated claims, the applicant has not taken the opportunity to elaborate her claims at a hearing. The Tribunal considers this strongly indicates that there is no basis for the applicant's claimed fears and that they were fabricated for migration purposes.

29. In the context of the applicant’s delay in seeking protection as well as her vague and limited claims and her non-attendance at a scheduled hearing, the Tribunal does not accept the applicant was or continues to be a lesbian or had a lesbian relationship as claimed; that she had been threatened by members of her partner’s family as claimed; that she fears ostracism from her family and community as claimed. The applicant’s failure to attend the hearing when requested to do so, however meant that that the Tribunal had not been able to explore the applicant’s claims with her or the opportunity to seek further information about the basis on which she sought protection.

30. On the basis of the available evidence, the Tribunal does not accept that the applicant suffered threats from her partner’s family members or from the community in Malaysia as a result of her being a lesbian, who had been committed to a lesbian relationship for the past five years as claimed and does not accept that as a result being a lesbian and in a lesbian relationship (as she claims) the applicant would face physical harm if returned to Malaysia.

31. Considering the applicant’s individual circumstances, on a cumulative basis, the Tribunal finds there is no real chance that, if she returns to Malaysia in the reasonably foreseeable future, she would be persecuted for any reason. Her fear is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H of the Act.

32. Considering the applicant’s individual circumstances, the Tribunal finds that there are no 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 she will suffer significant harm.

    Conclusions  

33. 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) of the Act.

34. 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) of the Act – complementary protection. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2) (aa).

35. 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

36. 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.

    …