1705932 (Refugee)

[2022] AATA 4541

1705932 (Refugee) [2022] AATA 4541 (6 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT(S):(Applicant Y); and

(Applicant X)

CASE NUMBER(S):  1705932 & 1705934

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 October 2022 at 1:07 pm (WA time)

DATE OF WRITTEN RECORD:                24 October 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 October 2022 at 1:42pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Bersih movement – credibility – late claims – economic consequences – ostracism by one’s own family – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MMM v MIMA (1998) 90 FCR 324

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 and Border Protection on 24 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 6 October 2022 the Tribunal obtained consent of Applicant X to hear her substantive application concurrently with that of her lawful spouse, who was also an applicant for a protection visa seeking review of a refusal decision by a delegate of the Minister.[1]  Both applicants relied on substantially identical claims for protection. 

   [1]           Tribunal Ref: 1705932.

3. Following the concurrent hearing of the applications for review, the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

4. Attached to this statement is a corrected transcript of the oral decision with reasons delivered to the applicants in person at the hearing.

   DECISION

5. The Tribunal affirms the decision under review.

   Dr Colin Huntly
   Member

   
   
   

   Corrected Transcript

   ORAL DECISION OF MEMBER HUNTLY  [12:30 pm]

   Introduction

6. MEMBER: The criteria for a Protection visa as set out in s36 of the Act and Sch2 to the Migration Regulations 1994 (the Regulations), a successful applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds, which you have had a chance to read in your own language.

7. Where relevant the Tribunal has taken into account the policy guidelines prepared by the Department relating to refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT), as is required by Ministerial Direction No. 84.

   Credibility

8. Before going to my findings, I note that a decision maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held, or to proceed on the assumption that a fear is subjectively held with respect to refugee protection.  If a decision maker finds on the evidence that an applicant does not subjectively hold the genuine fear of persecution there is no need to consider whether or not there is an objective basis for the claim, or indeed whether aspects of the claim were satisfied.

9. In this respect I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015), which provides at [8]:

   It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.

   Claims and evidence.

10. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view the Tribunal does not have any responsibility or obligation to specify, or assist in specifying particulars of a claim, or assist in establishing a claim.  This is consistent with the well settled proposition that it is for an applicant to make their own case.  Further, applicants are expected to present their case in full before the primary decision‑maker and not to wait until after the primary decision has been made.

11. Two obligations here are particularly relevant; the ongoing requirement under section 104 of the Act for an applicant to ensure that their relevant details are correct, and also to correct any incorrect information at the first reasonable opportunity.  Second, s423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant's claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made in relevant circumstances.

12. In such cases if the Tribunal is satisfied that an applicant does not have a reasonable explanation as to why a claim was not raised, or evidence not presented before the primary decision‑maker, the Tribunal is required to draw an adverse inference unfavourable to the credibility of the claim or evidence.  It is clear then, that applicants are required to present claims and evidence to the primary decision‑maker unless they have a reasonable explanation for not doing so.

    Background

13. The applicants appeared before the tribunal on two occasions (firstly, on 17 December 2021, and for a final time 6 October 2022) to give evidence and present arguments. 

14. Neither applicant was represented in this application and the Tribunal was assisted in its hearings by an interpreter, fluent and accredited in both Malay and English languages.  At the second and final hearing, I asked each applicant separately, if the Tribunal could proceed in a concurrent hearing, given that they had identical claims.  Each applicant gave their own separate consent to this amended procedure and a concurrent hearing of both applications, followed by a concurrent oral decision was thereby effected.

15. The applicants each seek a review of a decision of the delegate for the Minister for Immigration.  Applicant X’s application was refused by a delegate for the Minister for Immigration by written decision dated 24 March 2017.  Applicant Y’s application was refused by a delegate for the Minister for Immigration on the same date.  Those decisions found that each applicant should not be granted a protection visa.

    Identity

16. According to Applicant Y’s application and visa history and travel record, he arrived in Australia [on Date 1] September 2016, travelling alone on an ETA electronic 601 tourist visa. 

17. Applicant X’s travel record reveals that she arrived in Australia travelling on the same class of visa on [Date 2] September 2016.

18. Both applicants applied in an identical manner for a protection visa on 11 December 2016.  The applicants claimed to be citizens of Malaysia and provided a copy of their passport to the department with their application for protection.  The tribunal finds that the applicants are citizens of Malaysia, which are also their receiving country for the purposes of the Refugee and Complementary Protection assessments. 

19. The applicants were married in Western Australia, [in] February 2017, this relationship has resulted in the safe delivery of two male children.  The oldest child born in Western Australia on [date].  The younger of the two children was born [date] in Western Australia. 

20. While neither of these children are an applicant before the Tribunal in either application, for completeness, I note that there is nothing before the tribunal to suggest that either of these children would be unable to obtain registration of birth and have their citizenship of Malaysia by descent confirmed by the Malaysian government.[2]  Further, neither applicant raised claims for protection relevant to their children beyond expressing a natural desire for them to continue to live with their parents so as to maximise their life-outcomes. 

    [2] Part III of the Federal Constitution of Malaysia concerns citizenship. Article 31 of that Constitution provides that the Second Schedule has application regarding citizenship. See especially Part II of the Second Schedule at s 1.

21. Accordingly, for the purposes of this decision the applicants are citizens of Malaysia, and there is no evidence to suggest that they have a right to enter and reside in a third country for the purposes of section 36(3) of the Act.

    Country information.

22. In addition to the country information referred to in the delegate's decision record, a copy of which was provided to the Tribunal by the applicant, the Tribunal has also had regard to DFAT Country Information, Malaysia (dated 29 June 2021), in particular its discussion relating to the treatment of returnees.  I note that this publication at paragraph 5.37 provides as follows:

    Many thousands of Malaysians enter and leave the country every day.  People who return to Malaysia after several years' absence are unlikely to face adverse attention on their return on account of their absence.

    Claims.

23. At the hearings with the Tribunal 17 December 2021, and again at the hearing on 6 October 2022, I referred the both applicants separately to documents in the Tribunal’s possession and confirmed with each that they had identical claims for protection in their original applications for protection.  Those claims are accurately summarised in Part 4 their respective refusal letters, as follows:

    ·     They left Malaysia because they were involved in the Bersih movement which is opposed to the current government.

    ·     If they return to Malaysia, they will be imprisoned.

    ·     They were harmed in Malaysia by being attacked by acid gas and water.   

    ·     There is no state protection because they supported the government.

    ·     There is no place to relocate because the authority has connections, and they will be able to find them.

24. I confirmed with both applicants separately that they had responded to a written questionnaire from the Tribunal 22 September 2021.  In their responses to this questionnaire they had reiterated their fears based on Bersih claims, despite the passage of years and the subsequent changes of government in that country.  I confirmed with the applicants that each had expanded their claims to include concerns about economic matters and the wellbeing of their children in Malaysia compared with their life in Australia. 

    Applicant Y

25. Applicant Y separately was questioned about his circumstances in Malaysia before he departed for Australia, he confirmed that he is one of [number] children, born to parents that are still alive and married in Malaysia. 

26. His father is the retired former [Occupation 1] of a large company in Malaysia.  Two of his brothers live with his parents in Selangor, and he has one sister who is currently residing in [Country 1], and another brother who is living in a different part of Selangor. 

27. The applicants’ evidence relating to his involvement in the Bersih rally was vague and lacking in appropriate levels of detail and recall as to basic facts such as what happened, where, when and with whom. After further questioning and having put my concerns to him about the sufficiency of his evidence, he suggested that he was concerned about returning to Malaysia largely for economic reasons.  He fears suffering from depression on return if it is difficult for him to obtain work, because of the needs of his children. 

28. I asked the applicant if there was any particular person who would want to harm him on return to Malaysia for any particular reason, and the applicant said no. 

    Applicant X

29. I separately questioned Applicant X, who stated that she is one of [number] children born to her parents.  All of her siblings currently live in Malaysia, except for two younger [siblings] who are currently residing here in Australia, possibly with the applicants, and both of whom are also applicants for protection in this country. 

30. I asked the applicant why she left Malaysia and she said that it was because of her involvement with the Bersih movement.  As I questioned the applicant, her evidence changed, she stated that she no longer had any fears relating to Bersih and expressed concerns about her own dysfunctional family of origin; the poor economy; and personal health challenges she faces after having two caesarean deliveries. 

31. The applicant expressed generalised concerns about her children’s future and their schooling, the economic circumstances currently in Malaysia.  I pointed out to the applicant that her evidence was in significant parts vague and confusing, and that her claims had changed and continued to change as the interview continued. 

32. Late in the hearing the applicant appeared to suggest that she had been threatened by family members in connection with a promise made on her behalf years previously that she would marry a friend of one of her older brothers.  I pointed out to the applicant the challenges presented by such late claims at such a late stage of her application process. 

    Jointly

33. Having brought the applicants together at the end of the hearing, I put to them that their claims, as they were understood by me, appeared to be, that they feared the economic consequences of return to Malaysia; that they enjoyed a higher standard of living here in Australia; and, that they were concerned about the consequences of returning to Malaysia for their children. 

34. I pointed out to the applicants that circumstances of general application on return to Malaysia did not give rise to a well-founded fear of harm in that country for the purposes of a protection visa.  I also pointed out to them that disfunction within a family, similarly, did not give rise, in and of itself, to a claim for protection in Australia. 

35. I also discussed with the applicants the fact that the availability of healthcare and education generally were matters that did not involve persecution or particularised harm, such as would give rise to a well-founded fear of harm on return. 

    Findings.

36. While I accept that the applicants may have had some difficulty in finding appropriate work and earning a living suitable to them in Malaysia before coming to this country, I find on the evidence that I have heard from the applicants in person at the hearing, that neither person was harmed in any way by any person for any reason before leaving that country. 

37. I note that poor economic circumstances in another country, do not, in the absence of other considerations, give rise to a cognisable well-founded fear of harm for the purposes of the refugee criteria.  Nor does it, on its own, give rise to a reasonable apprehension of significant harm under the complementary protection assessments.  Further, given the evidence before me, in the present circumstances, I so find, with respect to the applicants’ claims for a protection visa.

38. With respect to any concerns relating to COVID, which were mentioned in passing towards the end of the hearing by Applicant X, I acknowledge the international public health crisis arising from the prolonged COVID-19 pandemic, and the considerations that it forces on visa applicants in Australia.  But my decision is not a decision on return.  I am though mindful that this decision has a potential to give rise to such a decision in the reasonably foreseeable future.  In the absence of additional considerations, I find whatever measures may be applicable to the population of Malaysia generally, in response to the COVID crisis, do not constitute an intentional act of remission for the purposes of the refugee or complementary protection findings, as to claims considered in this review.  Further, I note the relatively sophisticated measures adopted by the Malaysian state in combating the COVID pandemic, summarised by the Department of Home Affairs in its 26 March 2022 appreciation. 

39. Ostracism by one’s own family would not, of itself, usually constitute persecution for the purposes of a protection visa.  For example, in MMM v MIMA the applicant claimed that his family would disown him if they discovered his homosexuality.  The Court held that such treatment could not be regarded as persecution within the meaning of the Convention as it is a purely private matter, and the general standards of civilised countries do not suggest that adults not under a disability have a right to protection when, for private reasons, their families reject them:[3]

    Persecution for the purposes of the Convention connotes some official approbation of the feared conduct, or at least official failure or inability to do something about it, when the general standards of civilised countries would entitle the putative refugee to the protection of the State … There is nothing in such general standards to suggest that adults not under a disability have such an entitlement when, for private reasons, their families reject them.

    [3]MMM v MIMA (1998) 90 FCR 324 at 327 referring to Applicant A v MIMA (1997) 190 CLR 225 per Brennan CJ. His Honour’s reasoning is broadly consistent with the discussion of ‘protection’ and ‘persecution’ in the joint judgment of Gleeson CJ with Hayne and Heydon JJ in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

40. Clearly, a family’s ‘private reasons’ in a ‘purely private matter’ may well relate to one or more of the Convention grounds.  The point is that familial rejection, for any reason, is not the kind of detriment against which the state can be expected to provide protection.  As Madgwick J observed, it is unlikely that any state would accept the responsibility of affording any person in the applicant’s shoes either civil redress against his family or other amelioration of such a personal rift.[4]

    [4]MMM v MIMA (1998) 90 FCR 324 at 327.

41. The applicants have not established the requisite threshold of harm, or any connection to relevant convention definitions, enshrined in section 5J of the Act required in order to qualify for a protection visa for this essential and significant reason. 

42. I have carefully considered all of your claims as stated in your original application for protection and your subsequent responses.  Including the way that these claims have varied through the course of the hearing, together with your explanations of how your claims and your subsequent application to the Tribunal were made. 

43. Key aspects of each of your evidence has been unsatisfactory, inconsistent with prior sworn statements, otherwise vague and unsubstantiated.  Generalised concerns about familial rejection in and of themselves are not recognised grounds to support a well-founded fear of persecution or the alternative complementary protection criteria. 

44. Accordingly, I find that neither of the applicants have been harmed or victimised by any person in Malaysia for any reason at any time.  On that basis and considering the claims made and continue to be made by you in this hearing, I find that you would not face any chance of serious harm if returned from Australia to Malaysia by any person or agent of harm, including as a result of any familial rejection or by anyone else or for any other reason. 

    Summary

45. On the evidence, the Tribunal finds that there is no real chance you would be seriously harmed by such persons or for any other reason on return to Malaysia now, or in the reasonably foreseeable future. 

46. The real risk imposes the same standard as the real chance test.  Noting the findings I have already detailed for the above reasons, I am not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, that there is a real risk that they would suffer significant harm, now or in the reasonably foreseeable future. 

1. Taking the applicants’ claims at their highest, they do not make out a case for protection in Australia. 

2. For the reasons I have given, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under section 36(2)(a) of the Act. 

3. Having concluded the applicants do not meet the refugee criterion, I have considered the alternative criteria.  I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act. 

4. There is no suggestion that the applicants are members of the same family unit, as a person who meets either of those criteria as at the date of this decision.

   Decision

5. The Tribunal affirms the decisions under review.

   END OF ORAL DECISION  [1.07 pm]