1621554 (Refugee)

[2017] AATA 3182

1621554 (Refugee) [2017] AATA 3182 (26 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621554

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 May 2017 at 12:05 pm (WA time)

DATE OF WRITTEN RECORD:                14 August 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 14 August 2018 at 12:05pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – family violence – criminal gangs – triads – physical violence – state protection – internal relocation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 December 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 26 May 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this statement is a corrected Transcript of those reasons.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Colin Huntly
   Member

   
   

   MEMBER: The criterion at s.5J(1)(a) of the Migration Act contains a subjective requirement that an applicant must in fact hold a fear of being persecuted. At s.5J(1)(b), there is a requirement that there must be an objective fear of a real chance that you be persecuted. A real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

   A person who genuinely fears persecution for one or more of the reasons in the definition, namely; race, religion, nationality, political opinion or membership of a particular social group and that reason is the essential and significant reason for the persecution, it amounts to systematic and discriminatory conduct and involves serious harm, a person will be eligible for a protection visa under the refugee criterion.

   In determining if an applicant has a well-founded fear of persecution, the Tribunal is also required to consider the availability of adequate state protection.  Under s.36(2B) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the applicant could obtain from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm.  That is, the level of protection must be such that it will reduce the risk of the applicant being significantly harmed to something less than a real risk.

   For complimentary protection purposes, the Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of an applicant suffering significant harm.  The Tribunal also notes that the real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear. 

   Identity
   The Tribunal has had regard to the applicant’s passport, particularly the biometric information contained within it and the departmental file relating to the applicant’s application for protection.  On the basis of the information before the Tribunal, there is nothing to suggest that the applicant is not the person who appears on that passport.

   Accordingly, the Tribunal finds that the applicant is a national of Malaysia and that the applicant does not have a right to enter and reside in a third country.  Accordingly the Tribunal finds that the receiving country for the purposes of the Act at section 36(3) of the Act is that the receiving country is Malaysia.

   Country Information
   The Tribunal has discussed with the applicant the available country information.  The applicant accepted that the country information was accurate.  The Tribunal relies on the summary of country information provided in the delegate’s record of decision which largely repeats information contained in the Department’s own publication dated 1 September 2016 entitled, “Malaysia.  Common claims.”

   The Tribunal has referred the applicant to the section of that document entitled “Legal processes”.  The Tribunal agrees with this summary of the country information for Malaysia and, with the addition of the Department’s document from 2016 referred to above, the Tribunal accepts this summary of country information as its own.

   Claims
   The Tribunal has considered the applicant’s claims for protection being:

   • He left Malaysia because he was being abused by his stepfather. 
   • He was harmed physically, emotionally and psychologically by this abuse.
   • He would suffer stress and emotional disorders if he returns
   • He ran away but his stepfather still located him.
   • The authorities are unable to protect him and that his friends suggested he stay outside of Malaysia.

   In addition to these claims, the applicant has provided further information today at the hearing.  The applicant claimed at hearing that:

   • Since primary school he has had a stepfather who married his mother and the applicant knows that his stepfather is involved with gangs or triads. 
   • He was beaten by his stepfather – he and his siblings – quite frequently. 
   • When he finished school, his stepfather did not allow him to leave home. 
   • The applicant’s stepfather forced the applicant to work and kept the applicant’s earnings. 
   • The applicant claimed at hearing that this physical abused escalated to a level that he faced a lot of stress and, at this point, the applicant met a friend who advised him to go far away from his stepfather.

   The applicant claims that he borrowed money from a friend in the amount of $MYR[amount], that he had worked for this friend in a [service] business, that he knew this friend from childhood and that there were no real requirements made of the applicant for repaying the debt. 

   The applicant claims that his stepfather looked for him and hounded him and claims that the applicant’s stepfather is still looking for him now.  The applicant fears that his stepfather will do much worse to him than he had in the past if he returns to Malaysia.  The applicant has been told by friends in his village that his stepfather is still looking for him and still holds a grudge against him.

   The applicant claims that he made a police report in June of 2016 relating to the abuse he was experiencing from his stepfather and that the relevant police officer took no action.  The applicant claims that as a result of his beatings he had to attend [a named] Hospital and obtained advice, but no treatment from doctors at the hospital.  The applicant claims that police in his home area do not take much notice of reports against triad members because the area is controlled by the triads.  The applicant also claims that he has on occasion received treatment at a nearby clinic from a [named doctor].

   The applicant claimed that he does not wish to return to Malaysia because it would put stress on his mother and stepfather’s marital relationship.  The applicant claims that because of custom and law, his mother is forced to go along with the treatment that the stepfather is delivering to the applicant’s mother’s children.

   The Tribunal has considered the applicant’s claims as discussed already.  In particular, the Tribunal notes that, at the first opportunity the applicant said that he had not told anyone he had left Malaysia.  Later in the hearing the applicant amended his evidence when he stated that he had been in contact with friends in Malaysia.  It is from these friends the applicant claims he has found out that his stepfather still holds a grudge against him.  Accordingly, the Tribunal places little weight on this aspect of the applicant’s evidence. 

   The applicant claims that, after a severe beating he attended [a named] Hospital for treatment.  However when questioned, the applicant did not remember any of the details of his admission to hospital and did not remember the name of the doctor.  When asked about what treatment he received, the applicant said he was given no physical treatment and was told he should go somewhere to calm down because he was stressed and he had not yet reached the maximum levels of stress.

   The applicant claims that he was diagnosed with stress and [specified conditions].  Given the vague nature of the applicant’s details relating to this admission to hospital, the Tribunal places little weight on this aspect of the applicant’s evidence.  The applicant was asked about his report to [a named] Police Station of abuse by his father.  When questioned, the applicant was not sure if his report to police was taken down on paper and put on file and was not sure if he had signed anything.

   The applicant has stated that triads are very active in his area and that his stepfather is connected to triads and that this is why he did not obtain any assistance from police when he reported the abuse.  However, the applicant’s lack of detailed recollection of a significant event that the applicant claims happened less than 11 months prior to the hearing suggests that this evidence is not reliable.  Accordingly, the Tribunal places very little weight on this aspect of the applicant’s claims.

   Finally and most tellingly against the credibility of the applicant, when the Tribunal asked the applicant what the name of his stepfather was who has been married to his mother since the applicant was in primary school, the applicant was not sure of his stepfather’s name.

   Findings
   On the basis of the forgoing analysis of the applicant’s evidence, the Tribunal does not find the applicant’s claims for protection to be credible.  Accordingly the Tribunal finds the applicant does not hold a well-founded fear of being persecuted if he is returned to Malaysia. 

   Further, the country information discussed at the hearing satisfies the Tribunal that Malaysian authorities including the RMP and the judiciary are reasonably effective in protecting persons within Malaysia and in combatting organised crime.  While there is some corruption within the system, there is nothing before the Tribunal to indicate that the Malaysian state would be unable or unwilling to protect the applicant in his particular circumstances.

   Therefore, when having regard to the country information referred to already, I find that the applicant would receive effective protection from the RMP and judiciary against any abuse or threats he might face.  The Tribunal therefore finds that the receiving state or a party or organisation that controls the state or a relevant part of the state or a substantial part of the territory of the relevant state could provide protection against persecution of the kind referred to by the applicant in their application to the applicant.

   The Tribunal also finds that the state or relevant party or organisation is willing and able to offer such protection.  The Tribunal further finds that the applicant can access the protection, the protection is durable and in the case of protection provided by the state, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.  The Tribunal finds that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution.

   Therefore the applicant is not a refugee as defined in s.5H of the Act and the criterion in s.36(2)(a) of the Act is not satisfied for that reason.

   The Tribunal’s finding on the refugee criterion therefore, s.5H(1) of the Act, is that the Tribunal is not satisfied that [the applicant], a national of Malaysia born on [date] is not a refugee as defined by s.5H(1) of the Act.  The Tribunal is therefore not satisfied that he is a person in respect of whom Australia has protection obligations as outlined at s.36(2)(a) of the Act.

   The Tribunal finds that the applicant, [name], is not a refugee as defined by s.5H(1) of the Act.  Therefore, an assessment in relation to s.5H(2) has not been made.  The Tribunal is also required to consider the applicant’s entitlement to complimentary protection.  At s.36(2)(aa) of the Act, where an applicant is entitled to protection if the decision maker is satisfied that the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because there are substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   The Tribunal notes that under s.36(2B)(b) of the Act, an applicant is not entitled to complimentary protection if there are effective protective measures available to the applicant in the receiving country and that applicant does not have a well-founded fear of persecution.

   The guidelines I am required to apply state that even where there are general measures of state protection in place that would otherwise be considered reasonable for the population at large, if there remains a real risk of significant harm to the individual then Australia’s non-refoulment obligations will be engaged.

   The Tribunal has considered the particulars of the applicant’s claims against this particular standard of protection cumulatively and individually.  The Tribunal is satisfied that the applicant could obtain from the RMP and other Malaysian authorities as discussed in the country information already, protection such that there would not be a real risk that he would suffer significant harm.

   The Tribunal therefore finds that the applicant could obtain from an authority of the country protection such that there would not be a real risk that the applicant will suffer significant harm as outlined at s.36(2B)(b) of the Act.  Therefore it is taken not to be a real risk that the applicant will suffer significant harm and the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.

   The Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant, [name] being removed to Malaysia that there is a real risk that he will suffer significant harm.  Therefore, the Tribunal finds that [the applicant] is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.

   On the basis of the reasons discussed already, having considered all of the applicant’s claims for protections individually and separately and having discussed fully with the applicant the delegate’s record of decision which the applicant provided to the Tribunal, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations.  Accordingly an assessment in relation to s.36(2)(c) has not been made.

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

   END OF ORAL DECISION   [12.05 pm]