1706736 (Refugee)

1706736 (Refugee) [2020] AATA 547 (21 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1706736
COUNTRY OF REFERENCE: Malaysia
MEMBER:Paul Noonan
DATE:21 February 2020

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

Statement made on 21 February 2020 at 1:08pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – no claims of past harm – economic conditions in Malaysia – capacity to subsist – medical condition – access to medical treatment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

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 s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 21 December 2016. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owed protection obligations.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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.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. The Tribunal has had regard to the DFAT Country Information Report Malaysia (dated 13 December 2019).
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
There is no dispute regarding the applicant’s identity and citizenship. The applicant provided the Department with a certified copy of his passport and satisfied the delegate that he is a citizen of Malaysia.
The Tribunal is satisfied that the applicant is Malaysian. Accordingly, the Tribunal finds that Malaysia is the country of reference with respect to the refugee criteria and the receiving country in respect to the complementary protection criteria
Background and migration history
The applicant stated in his protection visa application that he was born in [Town 1] in the state of Sabah, Malaysia, and that he is ethnically Malay and belongs to the Muslim faith. He stated that he has a father, [and number of siblings] in Malaysia, and that his mother is currently in Australia. He indicated he can speak, read and write English and Malay.
The applicant arrived in Australia [in] March 2015 on an Electronic Travel Authority, which ceased [in] June 2015, making the applicant unlawful. On 21 December 2016, the applicant applied for Protection.
Claims for protection
The applicant’s claims for protection are set out in his response to the Protection visa application form.[1] The applicant’s written claims are an exact replication of those of his mother who has made a separate claim for protection (Department file: [number]).
[1] Form 866C, Department file [number], ff. 22-24
The applicant did not advance any further written claims at the Department or Tribunal level. He was not offered a Protection visa interview by the Department.
The applicant attended a Tribunal hearing on 13 January 2020 to give evidence and present arguments. The Tribunal was assisted by a Malay interpreter during the hearing. The Tribunal also took evidence from the applicant’s mother [Ms A]. The applicant was not represented at the hearing.
In light of the applicant’s written claims being an exact replication of claims for protection made by his mother the Tribunal commenced by asked the applicant, whom the Tribunal notes is now [age] years old, to set out his reasons for leaving Malaysia and if he has any fear of harm in returning to Malaysia. The applicant informed the Tribunal that he left Malaysia to accompany his mother to Australia. The Tribunal asked the applicant if had experienced any harm in Malaysia in the past? The applicant stated that had never suffered any harm in Malaysia in the past. In respect to any fear of harm in returning to Malaysia the applicant stated that he fears going back to Malaysia because he has no future there. This is because the economic status of Malaysia is not good. He has found gainful employment in Australia [undertaking work] and doing other jobs as they arise.
In addition the applicant noted that he is receiving better treatment for [Medical Condition 1] in Australia than he did in Malaysia. He stated that in Malaysia the doctors simply didn’t treat the condition effectively as there is not the same availability of appropriate medicines. [Ms A] also gave evidence his [Medical Condition 1] is much better than was the case in Malaysia due to a higher standard of health care available to him in Australia.
The Tribunal confirmed with the applicant that these claims constitute the totality of the applicant’s claims for protection.
Does the applicant have a well-founded fear of persecution should he return to Malaysia?
Economic claims
The applicant made no claims of having experienced any form of economic or financial or employment discrimination in the past in Malaysia, nor that he would be subject to any such discrimination in the future. The Tribunal finds that the applicant has not claimed, and there is nothing before the Tribunal to suggest that, he has faced any serious harm in Malaysia in the past due to the state of the economy. Despite the claimed poor economic situation in his home area of Sabah in Malaysia, the Tribunal does not accept on the basis of the applicant’s evidence, that there is a real chance that he will be denied employment, threatening his capacity to subsist, for one or more of the five reasons set out pursuant to s.5J(1)(a) of the Act if she returns to Malaysia. The absence of a refugee nexus means that the definition of ‘well-founded’ is not satisfied.
The applicant’s medical condition
In respect to the treatment of the applicant’s medical condition the applicant has not claimed, and there is nothing before the Tribunal to suggest that he would be denied appropriate medical treatment for any refugee reason in Malaysia. Rather the applicant simply claims that appropriate medical care and drug availability in Australia is better than that which is available to him in Malaysia. The Tribunal does not accept, on the basis of the applicant’s evidence, that there is a real chance that he will be denied access to basic medical care services where the denial threatens his capacity to subsist, for one or more of the five refugee reasons set out pursuant to s.5J(1)(a) of the Act if he returns to Malaysia.
Taking into account these considerations the Tribunal does not accept that the applicant faces a real chance of serious harm on return to Malaysia, including significant economic hardship that threatens the persons capacity to subsist, significant physical ill-treatment, a denial of access to basic services, where the denial threatens the person’s capacity to subsist, or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (as per s.5J(5) of the Act).
The absence of a refugee nexus in respect to any of the claims made means that the definition of ‘well-founded’ is not satisfied and therefore finds the applicant is not a refugee within the meaning of s.5H.
Is there a real risk that the applicant will suffer significant harm on his return to Malaysia?
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 will suffer significant harm.
With respect to the applicant’s fears of harm in regard to the prevailing economic conditions in Malaysia and the general availability of appropriate health treatment for his [Medical Condition 1] condition, the Tribunal accepts that the applicant may face some degree of financial or economic hardship upon his return and that he may also face some ongoing health difficulties due to inadequate health care in Malaysia in respect to the treatment of [Medical Condition 1]. However the Tribunal finds that these claims do not reach the level of significant harm having had regard to the examples set out at s.36(2A). That is, the applicant will not be intentionally subject to severe pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or extreme humiliation that is unreasonable as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia. In so finding, the Tribunal has considered the applicant’s evidence that it is the general lack of adequate health care and overall poor financial situation in Malaysia that is the basis for his fear of harm. It follows that the Tribunal does not accept there to be a real risk that the applicant will face significant harm if returned to Malaysia for this reason.
The Tribunal is therefore not satisfied that there is a real risk that the applicant will face significant harm if returned to Malaysia as he does not meet the alternative provisions in s.36(2)(aa).
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 for the purposes of 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
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.
…

[2020] AATA 547

21 February 2020

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice