1705146 (Refugee)

[2019] AATA 5745

1705146 (Refugee) [2019] AATA 5745 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705146

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Scott Clarey

DATE:9 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 December 2019 at 10:13am

CATCHWORDS
REFUGEE – protection visa – Malaysia – claims lacked specificity – response spaces left blank – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426A, 441A
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 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 and Border Protection on 2 March 2017 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 29 September 2016. The delegate refused to grant the visa on

   
   

   2 March 2017 on the basis that they were not satisfied that there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act.

3. [The applicant] applied to the Tribunal for review of this decision on 17 March 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record.

4. On 19 November 2019 the Tribunal wrote to [the applicant] (via the email address he provided to the Tribunal for the purposes of the review) to advise that the material before the Tribunal had been considered but it was unable to make a favourable decision on this information alone. Accordingly, [the applicant] was invited to appear before the Tribunal at 9:30 am on
   5 December 2019 to give evidence and present arguments relating to the issues in his case.

5. The hearing invitation clearly stated that if [the applicant] was unable to attend the hearing, he needed to advise the Tribunal as soon as possible and include the reasons for making the request. [The applicant] was also notified that the Tribunal would only change the date if satisfied that they had a good reason for being granted an adjournment. The invitation stated that if the Tribunal did not advise that an adjournment had been granted, [the applicant] was to assume that the hearing would proceed on the scheduled date and time as set out in the invitation. The hearing invitation also advised that if [the applicant] did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

6. [The applicant] failed to appear before the Tribunal at the scheduled time and place on
   5 December 2019. No correspondence was received from [the applicant] relating to the hearing. Having reviewed the Tribunal file, I am satisfied that [the applicant] was properly invited to a hearing in accordance with s.441A(5) of the Act, and the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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 themselves 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).

10. 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.

11. 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

12. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

    Identity

13. On the basis of the copy of the applicant’s Malaysian passport provided to the Department, I accept that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. I accept that Malaysia is [the applicant’s] ‘receiving country’ for both refugee criterion and complementary protection purposes.

    Relevant background

14. [The applicant] is a [age]-year-old man who was born in Sabah, Malaysia on [date]. [The applicant] stated that he spoke, read and could write in both Malay and English. He indicated that he is of the Christian religion. He does not keep in contact with his family outside of Australia. [The applicant] did not indicate that he was married or that he had any children. He did not provide any information regarding his education and indicated that he was unemployed in Australia. [The applicant] travelled to [Country 1] for a holiday twice in 2016. He indicated he first arrived in Australia [in] July 2016, having departed Malaysia legally.

    Claims from the protection visa application

15. [The applicant] set out his claims for protection in his application form as follows:

    Why did you leave that country?

    Im from Malaysia belong to a small city named Sabah. We are Facing problem by every type for working, study even For living. Agreement and (unreadable) with each other in our city. Can live peachfully. 

    What do you think will happen to you if you return to that country(s)?

    Want to live peach full without any fight and problem. 

    Did you experience harm in that country(s)?

    Left blank

    Did you seek help within the country(s) after the harm?

    Left blank

    Did you move or try to move to another part of that country(s) to seek safety?

    Beacouse where ever go people insulting me about colour and religion. Cant survive without job. Because expencixe.

    Do you think you will be harmed or mistreated if you return to that country(s)?

    Left blank

    Do you think the authorities of that country(s) can and will protect you if you go back?

    No, humanity becouse of bad politic’s can’t report to police no secure.

    Do you think you will be able to relocate within that country(s)?

    No safe. Religon fighting.

    Hearing on 5 December 2019

16. As noted above, [the applicant] failed to appear before the Tribunal at the scheduled time and place on 5 December 2019. The Tribunal is satisfied that all reasonable steps were taken to notify him validly about the forthcoming hearing.

17. I note that in the application for the visa under review, [the applicant] made claims relating to serious issues in Malaysia. If [the applicant] had attended the scheduled Tribunal hearing, I would have given him an opportunity to further ventilate his claims. As has been noted above, [the applicant] did not attend the scheduled hearing, did not contact the Tribunal to seek an adjournment or explain his non-attendance, nor did he engage further in the review process by providing any additional information to the Tribunal.

18. In these circumstances, I have decided to proceed to make a decision on the evidence available to the Tribunal.

    Findings and reasons

19. A refugee is a person who has, as defined in s.5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim by the person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims.

20. I have serious concerns with [the applicant’s] claims in terms of their generality and lack of specificity, particularly with regard to the particular harms he claimed to fear in Malaysia.  I note that [the applicant] did not respond (i.e. left the response space blank) to a number of questions on the application form relating to the nature of his claims. This included non-responses for questions including ‘Did you experience harm in that country(s)?’, Did you seek help within the country(s) after the harm?’ and ‘Do you think you will be harmed or mistreated if you return to that country(s)?’.

21. As noted above, had [the applicant] attended the scheduled Tribunal hearing, given the sweeping and terse nature of his claims, I would have sought further specific information from him on a range of relevant details. For example, if [the applicant] had attended the hearing, I would have asked specific questions to him about his claimed experiences, including those relating to his claimed inability to live peacefully in Malaysia. I would have asked [the applicant] about his background, ethnicity and religious beliefs. I would have also taken the opportunity to ask him about why he could not report these issues to the police and why he could not seek protection from the authorities if required.

22. I find that the details provided by [the applicant] about his claims are vague, terse, generic and do not provide anywhere near the kind of detail that would lead me to be satisfied that he was at risk of persecution in Malaysia. [The applicant’s] claims in their entirety lack the kind of specific detail that would satisfy me that he had actually experienced adverse treatment as claimed. Given the breadth of unanswered questions and the lack of specific detail relating to his claims, I am not satisfied, on the information before me, that any of these events occurred as claimed.

23. I am therefore not satisfied [the applicant] faces a real chance of suffering persecution involving serious harm for reasons of his ethnicity, religion, political opinion, either actual or imputed, or his membership of a particular social group or for any other reason he has claimed or can be distinguished on the information before me by the authorities or anyone else if he returns to Sabah, Malaysia, now or in the reasonably foreseeable future. I find that [the applicant]’ fears of persecution on this basis are not well founded.

24. Accordingly, I am not satisfied that [the applicant] is a refugee as defined by s.5H(1) of the Act. Therefore, I am also not satisfied [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.

25. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

26. With regard to [the applicant]’ claim to fear harm, I have considered that the complementary protection provisions provide that there is taken not to be a real risk of significant harm if 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’: s.36(2B)(b). I note that this test imposes a higher standard of protection from State authorities than the standard referred to in Australian refugee law. The Department’s Complementary Protection Guidelines, for example, state, ‘an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place’. The Guidelines further state ‘[e]ven 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 in question then Australia’s non-refoulement obligations will be engaged’. 

27. I have considered [the applicant’s] particular protection needs against this higher standard of protection. [The applicant’s] claims and circumstances giving rise to the claimed fear of harm were not clearly expressed, however, and involved significant gaps in terms of detail in his narrative. The generality of the claims has led me to find that they are not grounded in reality and are not personal to [the applicant] or anyone he knows. I therefore reject [the applicant]’ claims in their entirety. It follows 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 he will suffer significant harm.

28. Accordingly, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk [the applicant] will suffer significant harm as outlined in s.36(2)(aa) of the Act. Therefore, I find 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.

    Conclusions

29. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

30. 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).

31. 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

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

    Scott Clarey
    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.

    …

    5H   Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:    For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36    Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …