1706555 (Refugee)

[2017] AATA 1984

1706555 (Refugee) [2017] AATA 1984 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706555

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Gabrielle Cullen

DATE:8 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 08 August 2017 at 10:32am

CATCHWORDS

Refugee – Protection visa – Malaysia – Family claim – Economic Hardship – No real risk of harm

LEGISLATION

Migration Act 1958, ss 5(1) 5H(1)(a)-(b), 5J(1)(a)-(b), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 65, 499

Migration Regulations 1994, Schedule 2

CASES

Chen Shi Hai v MIMA [2000] HCA 19

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 [in] March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, departed Malaysia for Australia [in] October 2016 and applied for the visas [in] December 2016. The second named applicant is the husband of the first named applicant, and the third and fourth named applicants are their minor children.

3. The first named applicant claims in his protection visa application that he departed Malaysia as his family’s economic situation was getting worse day by day and became more serious due to the cost of living. The second named applicant makes the same claims as her husband and adds that she followed her husband because of the economic difficulties facing the family. The third and fourth named applicants while they submitted Part C forms, being applications for protection visas, did not outline any claims in their applications.

4. The delegate refused to grant the visas [in] 2017 on the basis that the harm feared has no link to any of the reasons provided in subsection 5J(1)(a) and does not reach the level of persecution within the meaning of s.5J(1)(b). He referred to country information as to Malaysia’s economy and low level of employment and the lack of detail of their claims.

5. The first and second named applicants appeared before the Tribunal on 2 August 2017 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicants were assisted with an interpreter in the Malay and English languages. The applicants confirmed they relied on the evidence of each other as to their claims.

6. At [age] and [age] years of age the third and fourth named applicants are unable to articulate fear. Therefore, as allowed for in Chen Shi Hai v MIMA, the Tribunal finds that the fears of their parents on their behalf are sufficient for the purposes of the refugee and complementary protection provisions.

7. The issues to be considered in this case are as follows.

   ·Are the first and second named applicants credible as to their claims?

   ·Do the applicants have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?

   ·Do the applicants meet the protection obligations under the complementary protection provisions of the Migration Act?

   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 Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.

    ·The protection visa applications of the applicants dated [December] 2016, including claims outlined in the applications of the first and second named applicants and identity documents.

    ·Oral evidence of the first and second named applicants provided at the Tribunal hearing on 2 August 2017.

    ·[Certificate] as to work completed by the first named applicant [at Workplace 1].

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

    ·DFAT DFAT Country Report Malaysia dated 19 July 2016.

15. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    The Applicant’s Claims

16. The first named applicant claims in his protection visa application that he departed Malaysia as his family’s economic situation was getting worse day to day and became more serious due to the cost of living. He claims the cost of living and his monthly commitment was higher than his monthly income. He claims Malaysia is facing economic challenges, over and above oil prices, including the falling value of the ringgit, and a slowdown in the rate of economic growth. He claims he cannot afford to live in Malaysia anymore as the economy of his family is getting worse and he feels very sad at being unable to support his family.

17. He claims if he returns to Malaysia he will be unable to support his family and take care of his family since the cost of living is higher than his monthly wage. He claims he did not try and move to another part but the cost of living is the same. He claims the authorities in Malaysia cannot protect him as they are not interested in the economic affairs of his family.

18. The second named applicant makes the same claims as her husband and adds that she followed her husband because of the economic difficulties facing the family.

19. At the hearing held on 2 August 2017 the applicants confirmed that they were relying on the evidence of each other. The first named applicant indicated that he achieved a Certificate of [area of study] which took [number] years after high school. He said he does not own property in Malaysia but rented living there with his wife and two children. He said his mother lives in his hometown in her own house and his father is dead. He indicated his mother works and he confirmed that if the family was in difficulty they could live with his mother, depending on the situation of his siblings. He said he worked at [Workplace 1] until March 2016 and then worked in a part-time job in a [certain industry], until his departure. He said to travel to Australia he paid $[amount]A and was able to pay this by selling his car. As to any saving he may have; he said not much.

20. The second named applicant achieved a [Diploma] in Malaysia and worked but stopped because her children are young and because of the cost of day-care. She indicated she had worked full time and when she had worked the children went to day care. The Tribunal asked why the second named applicant could not work full time and the first named applicant look after the children.

21. As to why they fear return; speaking for both applicants, the first named applicant said it is very hard to survive, it is tough to find a job and he had to work part time. He said it was a struggle to make all the payments. When asked why it was hard to find work he said because of the economic difficulties in Malaysia. He said he was working in [a certain industry] and then they reduced the employees dramatically. The first named applicant indicated because of the difficulties there were threats to their life; and when asked what he meant by this both the applicants said that as a result of their economic situation there was conflict between them and they argued, life was unsettled, it was stressful as they were unable to meet their expenses.

22. The Tribunal raised with them concerns as to whether they meet the protection provisions as outlined in the Migration Act. It also raised with them independent information as to Malaysia current economic situation and employment situation.

    Assessment of Claims

23. On the basis of the applicants’ identity documents, including their passports and evidence provided at hearing the Tribunal accepts that the applicants are nationals of Malaysia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Malaysia is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Malaysia is the receiving country.

    Refugee

24. The Tribunal accepts that the applicants travelled to Australia to seek better economic opportunities. The Tribunal accepts that the first named applicant was not earning as much as before when working [at Workplace 1] and with the income he was making working part-time from March 2016 to October 2016 his income was not covering his expenses. It accepts he was unable to find full time employment and faced the difficulties he claims. The Tribunal accepts this caused conflict in their relationship, made them sad and they were stressed about their economic situation. It accepts they departed Malaysia on this basis.

25. While the first named applicant initially said there were threats to their lives when asked to further explain it, both the applicants said that as a result of their economic situation there was conflict between them and they argued, life was unsettled; it was stressful as they were unable to meet their expenses.

26. However, if a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a).

27. The applicants have claimed that they travelled to Australia for economic reasons. The first named applicant said the difficult economic situation they faced is because of Malaysia’s economic downturn when asked why they face these economic difficulties. The second named applicant agreed with this.

28. The evidence indicates that the applicants have not claimed they fear the difficulties they face, including economic harm for one of the reasons set out in s.5J(1)(a) if they returned to Malaysia in the reasonably foreseeable future. Further, there is no evidence that the harm would be for one of those reasons. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm for reasons of race, nationality, membership of a particular social group or political opinion.

29. The Tribunal is therefore not satisfied therefore that the applicants have a well-founded fear of persecution for one of the reasons set out in the legislation were they to return to Malaysia in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary Protection

30. 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 a protection 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 the applicant 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’).

31. As discussed with the applicant at hearing, the Department of Foreign Affairs and Trade in 2016 had reported on Malaysia’s economy as follows:

    Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy. In 2015 its GDP growth was five per cent and per capita GDP was over USD11, 000. Since independence, Malaysia has transformed from a commodity-based economy, focused on rubber and tin, to a leading producer of electronic parts and electrical products and exporter of palm oil, oil and gas..

    Malaysia’s economic growth has led to a significant reduction in poverty with the share of households living below the national poverty line (USD8.50 per day in 2012) falling from over 50 per cent in the 1960s to 0.28 per cent in 2016. Poverty rates were 0.8 per cent for ethnic Malay, 0.1 per cent for ethnic Chinese and 0.6 per cent for ethnic Indians, based on the most recent available statistics per ethnic background, collected in 2014. The rural poverty rate of 1.6 per cent in 2014 was higher than that of urban areas (0.3 per cent in 2014). The UNDP’s Human Development Index ranked Malaysia 62 out of 188 countries in 2015, placing it in the ‘high human development’ category. [1]

    [1] Department of Foreign Affairs and Trade, Country Information Report Malaysia,  2016

32. According to the BBC World News Malaysia profile:

    Malaysia boasts one of south-east Asia's most vibrant economies, the fruit of decades of industrial growth and political stability. The majority Muslim ethnic Malay are dominant politically, and benefit from positive discrimination in business, education and the civil service, but a large ethnic Chinese minority holds economic power. The communities coexist in relative harmony, although there is little racial interaction, and a religious divide persists.[2]

    [2] BBC World News, Malaysia Country Profile, 12 June 2017, - accessed 20 June 2017

33. The applicants were asked why they felt that they could not find work which would support their family, given the country information which suggests that the economy is strong and bumiputera are given economic advantages. Furthermore, his employment history indicated that he had held a number of jobs, including a full time job to March 2016 and a part time job to October 2016. The evidence is the second named applicant when she wished to was able to be employed full time as [an occupation]. The first named applicant’s evidence is that his mother owns her own home and if difficult he could live there. In response he referred to his employment with [Workplace 1] being terminated and employment there overall being drastically reduced.

34. The Tribunal accepts that the applicants travelled to Australia to seek better economic opportunities, the first named applicant was not earning as much as before when working at[Workplace 1], he had difficulty finding full-time employment from March 2016 to October 2016, and with the income he was making working part-time from March 2016 to October 2016 his income was not covering his expenses. It accepts he was unable to find full time employment and faced the difficulties he claims. The Tribunal accepts this caused conflict in their relationship, made them sad and they were stressed about their economic situation. It accepts they departed Malaysia on this basis.

35. While the first named applicant initially said there were threats to their lives when asked to further explain it, both the applicants said that as a result of their economic situation there was conflict between them and they argued, life was unsettled, it was stressful, they faced insomnia as they were unable to meet their expenses.

36. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

37. The Tribunal accepts that goods may be expensive and that the applicants were struggling economically from March 2016 to October 2016. However they owned their own car and were paying rent, and had not been faced with the situation of living with the first named applicant’s mother as they could not afford to rent. The evidence indicates that the second named applicant also worked in the past and chose not to, to look after her children.

38. While there may have been financial strain and conflict between the first and second named applicants, as well as stress, the independent evidence and individual circumstances of the applicants do not indicate that the applicants would be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, or any other kinds of significant harm.

39. Further, as the difficulties and harm they claim they will face on return are on account of a down turn in the Malaysian economy which is faced by the Malaysian population as a whole, the Tribunal is therefore of the view that there is not a real risk they will suffer significant harm because the real risk is one faced by the population of the country generally and is not faced by the applicants personally. The Tribunal considers that the problems they claim to face upon return as a result of a downturn in the economy do not constitute significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of  Malaysia generally and is not faced by the applicant personally.

1. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm as defined in subsection 36(2A).

   CONCLUSION

2. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) and s.36(2)(aa). The Tribunal is not satisfied that any of the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

   DECISION

3. The Tribunal affirms the decision not to grant the applicants protection visas.

   Gabrielle Cullen
   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.

   …