Background
Background to the litigation
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is [a particular age] year old man from Johor, Malaysia. The applicant is of the Muslim faith, is of Malay ethnicity, and speaks Bahasa Malay and English. The applicant is unmarried. His parents and [a number of] siblings live in Malaysia. The applicant completed his education in Kuala Lumpur in Malaysia from [a range of certain dates]. He completed qualifications in [a particular field] from January 2009 to January 2015. The applicant worked in Malaysia as a [particular occupation] from January 2009 till January 2016. He then worked as [a different occupation] with [a particular company] from February 2016 until he came to Australia. He stated in his application that he has been unemployed in Australia. The applicant had travelled to Australia previously on holidays from [March] 2016 to [May] 2016. The applicant arrived in Australia [in] June 2016, under [a particular passport number], issued [in] 2016 and expiring [in] 2021 pursuant to a subclass 601 (Electronic Travel Authority) visa granted [in] June 2016 and expiring [in] September 2016. The applicant applied for a protection visa [in] August 2016. The applicant did not attend an interview with the delegate, or provide additional information in support of his claims prior to the decision by the delegate. Claims: The applicant claims that he left Malaysia because the Malaysian Government is tracking members of Bersih. The applicant claims he was hit but was lucky and avoided being caught by the police. The applicant claims that he is a Bersih member. He claims that Bersih activists are campaigning for clean and fair elections and members of the movement were urged to wear yellow shirts as a symbol of protest. The applicant decided to seek refuge and safety in Australia. The applicant claims that if he returns to Malaysia, he will be apprehended by the police and he will be fined for his political involvement. He claims the police are searching for group members and the authorities are unable to protect him. The applicant claims he has tried to relocate in Malaysia but the situation is the same throughout the country.Evidence: The Tribunal has before it a range of material, including, relevantly:·The applicant’s protection visa application forms completed and signed on 19 August 2016, lodged [in] August 2016 (“visa application”);·The applicant’s identity documents being a certified copy of passport;·The protection visa decision record (‘delegate’s decision record’) of [January] 2017;·The review application form which did include a copy of the delegate’s decision record;·Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Malaysia, published on 19 July 2016. Country of reference / receiving country
Evidence
Evidence Before The Court
The applicant claims he has tried to relocate in Malaysia but the situation is the same throughout the country.Evidence: The Tribunal has before it a range of material, including, relevantly:·The applicant’s protection visa application forms completed and signed on 19 August 2016, lodged [in] August 2016 (“visa application”);·The applicant’s identity documents being a certified copy of passport;·The protection visa decision record (‘delegate’s decision record’) of [January] 2017;·The review application form which did include a copy of the delegate’s decision record;·Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Malaysia, published on 19 July 2016. Country of reference / receiving country The applicant claims to be a Malaysian national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is his country of nationality and also his receiving country for the purposes of s.5H(1) and s.36(2)(aa) of the Act. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).Hearing: The applicant attended the hearing on 26 March 2018. He was unaccompanied. The hearing was conducted in the English language with a Malay interpreter on standby in the event of need. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection. The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Malaysia. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Malaysia. The harm must be directed at him for one of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Malaysia. The Tribunal asked the applicant whether he had completed the application form himself. He said that he had completed the form himself and it was in his handwriting. The applicant stated that he had signed the form himself. The Tribunal noted that the applicant had visited Australia for a period of nearly three months just three weeks before he came to Australia again.
Decision
Reasons for decision
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.Overall conclusion: 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). 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). The Tribunal affirms the decision not to grant the applicant a protection visa.Michael HawkinsMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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.CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is [a particular age] year old man from Johor, Malaysia. The applicant is of the Muslim faith, is of Malay ethnicity, and speaks Bahasa Malay and English. The applicant is unmarried. His parents and [a number of] siblings live in Malaysia. The applicant completed his education in Kuala Lumpur in Malaysia from [a range of certain dates]. He completed qualifications in [a particular field] from January 2009 to January 2015. The applicant worked in Malaysia as a [particular occupation] from January 2009 till January 2016. He then worked as [a different occupation] with [a particular company] from February 2016 until he came to Australia. He stated in his application that he has been unemployed in Australia. The applicant had travelled to Australia previously on holidays from [March] 2016 to [May] 2016. The applicant arrived in Australia [in] June 2016, under [a particular passport number], issued [in] 2016 and expiring [in] 2021 pursuant to a subclass 601 (Electronic Travel Authority) visa granted [in] June 2016 and expiring [in] September 2016. The applicant applied for a protection visa [in] August 2016. The applicant did not attend an interview with the delegate, or provide additional information in support of his claims prior to the decision by the delegate. Claims: The applicant claims that he left Malaysia because the Malaysian Government is tracking members of Bersih.