1706862 (Refugee)

1706862 (Refugee) [2017] AATA 2838 (3 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706862
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Susan Trotter
DATE:3 November 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 November 2017 at 10:59am
CATCHWORDS
Refugee – Protection visa – Malaysia – No Convention reason – Economic hardship – Fear of family violence – Bullying – State protection available

LEGISLATION
Migration Act 1958, ss 5, 5(1), 5AAA, 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BZADA v MICand RRT [2013] FCA 1062
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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 [in] March 2017 to refuse to grant the visa applicant, [named], a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] applied for the visa [in] December 2016. The delegate refused to grant the visa on the basis that that he was not satisfied the that [the applicant] is a refugee as defined by s 5H(1) of the Act nor a person in respect of whom Australia has other protection obligations as provided for in the legislation.
[The applicant] lodged an application for review of the delegate’s decision in relation to the Subclass 866 visa with the Tribunal on 2 April 2017.
[The applicant] appeared before the Tribunal on 5 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Relevant legislative provisions are extracted in the attachment to this Statement of Decision and Reasons.
ISSUES
The issues arising from the relevant provisions that are required to be determined by the Tribunal are as follows:
(a) Is [the applicant] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?; or
(b) Is [the applicant] a person in respect of whom Australia has protection obligations on complementary protection grounds?; or
(c) Is [the applicant] a member of the same family unit as a person in respect of whom Australia has protection obligations, as a refugee or on complementary protection grounds, and that person holds a protection visa of the same class?
The Tribunal also notes that the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The question of whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
CREDIBILITY
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 39:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.” Nevertheless, as Burchett J counselled, in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court of the Federal Court in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.” On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9). Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed)). In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
MANDATORY CONSDIDERATIONS
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.
EVIDENCE AND CONSIDERATION OF CLAIMS
Background
[The applicant’s] visa application states that he was born in [Village 1], Sarawak, Malaysia.
Further information provided in [the applicant’s] application is as follows:
(a) He was born in [year]. He speaks, reads and writes Malay and reads and writes English. His religion is Christian and his ethnicity is Kayan.
(b) His [specified family members] reside in Malaysia. He contacts his family once per week by a phone call.
(c) He last entered Australia [in] October 2016 on a passport issued in Malaysia [in] 2013 and expiring [in] 2018, pursuant to a [temporary] visa granted [in] October 2016 which was to cease [in] October 2017.
[The applicant] set out his claims for protection in his visa application in relation to returning to Malaysia as follows:
Claims
Why did you leave that country(s)? Please specify details?
“Because of family problem. I live with my uncle in my Country and my uncle was an alcoholic and a gambler. I am always struck when my uncle come home when he was drunk and lost to gambling.”
What do you think will happen to you if you return to that country(s)?
“I always wanted to go home but I’m afraid of my uncle. I have to live with my uncle because other members of my family who have financial difficulties and debts with my uncle.”
Did you experience harm in that country(s)?
“Yes”
Give details (Including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)
“I was beaten with belt and kicked by my uncle. Then my uncle come home drunk and angry at losing gamble.”
Did you seek help within the country(s) after the harm?
“Yes”
Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)
“I’m ask for my friend help, but just for a few day because at economical problem. He can’t afford me to stay with him much longer. I don’t know where else to go.”
Did you move, or try to move, to another part of that country(s) to seek safety?
“Yes”
Give details (including where you tried to move, why you were unable to move or where you moved to and what happened)
“I entered [Country 1] to seek shelter but there occurs a problem of political and boombings occur. I worry about that anymore because if I die, no one in my family knows.”
Do you think you will be harmed or mistreated if you return to that country(s)?
“Yes”
Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
“I entered the [Country 1] border to seek shelter but there occurs a problem of political and bombings occur. I worry about that anymore because if I die, no one in my family knows.”
Do you think the authorities of that country(s) can and will protect you, if you go back?
“No”
Give details about why you think the authorities could not, or would not, protect you
“I never ask the authorities for my family still owes my uncle. and if I ask, the authorities can not protect me every time.
Do you think you would be able to relocate within that country(s)?
“No”
Give details about why you are unable to relocate
“I do not have other family members who can help. I also have no property and no other place to go. If I go home, I do not want to see my uncle again.
(sic)
Evidence
The Tribunal has before it a range of material, including, relevantly:
(a) [The applicant’s] protection visa application forms.
(b) [The applicant’s] identity documents being a certified copy of his passport.
(c) The delegate’s decision record.
(d) Country information including the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on country, published on Malaysia dated 19 July 2016.
Additionally the Tribunal took into account [the applicant’s] evidence to the Tribunal which may be summarised as follows:
(a) He was born in a small village, [Village 1], but moved to the city, Miri Sarawak, when he was still a child.
(b) Prior to coming to Australia he was living with his family in Malaysia: [specified family members]. His aunt and uncle used to live there but they have since left.
(c) When queried as to why he lodged a protection visa application, he stated that it was because he is still young and he came to Australia to work.
(d) He does not want to return to Malaysia because it is very hard for him to find a job there and the money is no good to buy the furniture he would like to buy.
(e) He decided to come to Australia because he heard some people and friends talking about Australia and they said it was good to find money.
(f)    If the visa is not granted he will have no other choice but to go back and live with his [specified relatives].
(g) His [relatives] drove him to the airport at Sarawak and he flew to Kuala Lumpur and he then came to Australia. [They] wanted him to come to Australia because he could not find a good job in Malaysia.
(h) Prior to coming to Australia he was living in Kedah. He lived in Kedah from 2015 to October 2016. He was working at [Business 1] in Kedah. He worked there for nearly a year. He paid money to stay in a house for [Business 1] employees.
(i)    He earned enough money at [Business 1] to pay for rent, food and clothes but he wanted to earn more money because he wanted to have nice furniture rather than old furniture. He also wanted to buy a nice car and save more. He quit his job at [Business 1] because the salary was too low to buy the things he wanted. That is why he came to Australia.
(j)    When queried as to how long he wishes to stay in Australia, he stated either forever or for five years. He is afraid of returning to Malaysia because it is hard to get a good job, a job good enough to buy all the things he wants.
(k)   He phones his [relatives] in Malaysia every week.
(l)    Other than Australia, he has also visited [Country 1] and [Country 2]. His ex-girlfriend was from [Country 1] and another [relatives] live in [Country 2]; he has visited them there.
(m) When queried as to whether he had ever experienced any harm in Malaysia, he stated that he had [an] accident and was hurt in the accident.
(n) His agent did not tell him what was written in the form. He read some of it but he was not thinking.
(o) It is not about money. It is about his life. He does not want to be poor. He wants to work hard so that he can help his [relatives]. He does not want to have poor furniture. He wants to stay in Australia and work hard and have nice things and he wants to pay his [relatives] back for looking after him when he was a child.
(p) He is afraid his [relatives] will not be happy if he returns to Malaysia because he wants to give back to them for what they have done for him. In Malaysia, he is not rich. He is poor. He hopes he can stay in Australia for a long time. When he calls his [relatives] and tells them his visa is not successful it will not be good for their health.
(q) The Tribunal raised with [the applicant] that his claims in his protection visa application forms were very different to what he had told the Tribunal at hearing. The Tribunal read to [the applicant] what had he had written in his forms. [The applicant] said he had so many problems and he told the truth. He said that what he said in the form, it is different. The Tribunal asked [the applicant] whether what he had written in the form was true or what he said at hearing. [The applicant] stated that when he was living in Kedah, his uncle came to see him. He was not living with his uncle. His uncle visited him. His uncle did not kick him or hurt him like it says in the forms. His uncle wanted money to drink or whatever, for gambling, so he gave his uncle money. He cannot tolerate the behaviour of his uncle because he asks him for money and his uncle then gambles with the money.
(r)   He does not want to see his uncle anymore if he goes back to Malaysia. He would not tell his uncle that he was back. If he went back to his [relatives]’ home he would not see his uncle because he would tell his [relatives] not to tell. But someday he will know. His uncle did kick him but not hard.
(s) The Tribunal discussed with [the applicant] that what is written in his protection visa application forms is that he was living with his uncle and he had to live with his uncle which is different to what his evidence to the Tribunal. The Tribunal discussed with [the applicant] that it did not seem that it should rely upon what was written in the forms, but rather should only have regard to [the applicant’s] evidence at hearing. [The applicant] agreed.
(t)    [The applicant] told the Tribunal that the uncle he is talking about is a different uncle to the one he lived with when he was living with his [relatives]. This uncle visited him in Kedah when he wanted money. The Tribunal asked [the applicant] how many times his uncle come to visit him. [The applicant] said that his uncle came three or four times.
(u) [The applicant] said he is not scared that his uncle would hurt him or kill him. He was just bullying him. He does not know but if he goes back he thinks his uncle might bully him again. If he went back to Malaysia and was scared that his uncle would physically hurt or kill him, he would call the police but he does not think his uncle would hurt him or kill him.
ISSUES
Issue 1 – is [the applicant] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?

Pursuant to s.5H(1)(a) of the Act, 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: 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).
The Tribunal finds that [the applicant] is a citizen of Malaysia based upon his passport and will assess his claims on that basis. The Tribunal also finds that [the applicant] is outside his country of nationality, Malaysia. Malaysia is therefore the receiving country for the purpose of assessing [the applicant’s] claims for protection.
There is no evidence before the Tribunal to suggest that [the applicant] has a right to enter and reside in any country other than his country of nationality, Malaysia. The Tribunal therefore finds that [the applicant] is not excluded from Australia’s protection obligations pursuant to section 36(3) of the Act.
The Tribunal first considered whether [the applicant] has a well-founded fear of persecution if he returns to Malaysia. Subparagraph 5J(4)(b) of the Act requires that the persecution feared must involve serious harm.
For the purposes of s.5J(4)(b), s.5J(5) provides that the following are instances of serious harm: (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.
[The applicant’s] evidence to the Tribunal was that he does not want to return to Malaysia because he cannot earn as much money as he would like. He worked at [Business 1] prior to coming to Australia and that enabled him to pay for rent, food and clothes but he wanted to earn more money. He wanted to buy a car. He wanted to save more. He wanted to buy nice furniture. He wanted to pay his [relatives] back for looking after him when he was a child. He does not want to be poor. He wants to be rich.
[The applicant’s] reasons for fearing return to Australia are in relation to not being able to find a job in Malaysia that pays enough money to buy all of the things he wants (being poor rather than rich) and also being concerned that his uncle may bully him and ask him for money. Amongst other matters, the Tribunal is not satisfied that what is feared by [the applicant] is for reason or reasons of race, religion, nationality, membership of a particular social group or political opinion (the reasons). Rather, the reasons for [the applicant’s] concerns relate to being able to get a job that earns more money and a concern that his uncle might bully him and ask him for money. These matters all relate to [the applicant] personally and are not for reason of any of the five stipulated matters.
Subparagraph 5J(1)(a) is therefore not satisfied. It follows that [the applicant] is not a refugee pursuant to section 5H(1) and that the requirements of s.36(2)(a) of the Act are not met.
Issue 2 – is [the applicant] a person in respect of whom Australia has protection obligations on complementary protection grounds?
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). In so doing, the Tribunal considered whether there are 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 that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).
‘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.
As already noted, [the applicant’s] evidence to the Tribunal was that he does not want to return to Malaysia because he cannot find a job that would earn as much money as he would like to buy all the things he would like (being poor rather than rich) and to pay back and help his [relatives]. Further, he said that his uncle might bully him, and ask for money, again if he returns to Malaysia and his uncle finds out where he is located.
The Tribunal first considered [the applicant’s] claim of not being able to find a job to earn as much money as he would like (being poor rather than rich). The evidence is that [the applicant] worked at [Business 1] for a year before coming to Australia and that he quit this job. He was able to pay for rent, food and clothes from this job. He was not however able to buy as nice as furniture as he would like, or able to save including for a nice car, from the income from the [Business 1] job. He was also not able to pay his [relatives] back for looking after him as he would like to do. Given [the applicant] was previously able to obtain work in Malaysia for a year, with income sufficient to pay for his necessities, the Tribunal is satisfied and finds that if [he] returns to Malaysia, he would be able to obtain another job which would earn him enough income to pay for his necessities of living. Having regard to the definition of significant harm in ss.5 and 36(2A) of the Act, the Tribunal does not consider that the inability to obtain a job that would earn enough money for things beyond necessities, such as nicer furniture, savings, a nice car, paying back his [relatives], as opposed to a job that covers necessities, amounts to significant harm as defined in s.36(2A) of the Act. It does not involve the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act. Further, it does not constitute severe pain or suffering, whether physical or mental, or pain or suffering, whether physical or mental, that in all the circumstances could reasonably be regarded as cruel or inhuman in nature. Nor does it involve extreme humiliation which is unreasonable.
Having had regard to all of these matters, the Tribunal is not satisfied that the harm claimed by [the applicant] of not being able to obtain a job that would earn enough money for things beyond necessities, such as nicer furniture, savings, a nice car, paying back his [relatives], as opposed to a job that covers necessities, amounts to significant harm as defined by s.36(2A), and finds accordingly.
The Tribunal then considered [the applicant’s] evidence that in the past his uncle has come to visit him asking for money and has bullied him. Given this has occurred in the past, the Tribunal is satisfied that [the applicant’s] uncle might repeat this sort of behaviour towards [the applicant] in the future if [the applicant] returns to Malaysia and his uncle knew where he was located. The Tribunal accepts this would be an uncomfortable and undesirable experience. However, as raised with [the applicant] at hearing, the Tribunal is not satisfied that this amounts to significant harm. Having regard to the definition of significant harm in ss.5 and 36(2A) of the Act, the Tribunal does not consider that bullying and asking for money amounts to significant harm as defined in s.36(2A). It does not involve the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act. Further, it does not constitute severe pain or suffering, whether physical or mental, or pain or suffering, whether physical or mental, that in all the circumstances could reasonably be regarded as cruel or inhuman in nature. Nor does it involve extreme humiliation which is unreasonable.
Having had regard to all of these matters, the Tribunal is not satisfied that the harm claimed of [the applicant’s] uncle bullying him and/or asking for money amounts to significant harm as defined by s.36(2A), and finds accordingly.
[The applicant’s] evidence was that he does not think his uncle would physically harm or kill him in the future. The Tribunal’s considers [the applicant’s] evidence the best evidence of the likelihood of such harm occurring in the future given [the applicant’s] personal knowledge of his uncle. The Tribunal is therefore satisfied and finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Malaysia, there is a real risk that his uncle would physically harm or kill him. Nonetheless, for completeness, the Tribunal is satisfied that physical harm or being killed does amount to significant harm under s.36(2A) of the Act. However, [the applicant’s] evidence was that if he did feel threatened by his uncle in that regard, he would call the police. Under s.36(2B)(b) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Consistent with [the applicant]’s evidence that he could seek assistance from the police, the most recent DFAT report on Malaysia (dated 19 July 2016) reports that credible local and international sources consider the Royal Malaysia Police to be a professional and effective police force as follows:
Royal Malaysian Police (RMP)
5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.
Even if the Tribunal did consider there was a real risk of significant harm to [the applicant] in [his] uncle hurting him physically or killing him, which it does not, the Tribunal is satisfied that [the applicant] could obtain protection from the police in Malaysia, and notably [the applicant’s] evidence was that he would seek police protection in those circumstances. Pursuant to s36(2B)(b) of the Act, there is therefore taken not to be a real risk that [the applicant] will suffer significant harm on this basis.
Having had regard to all of these matters, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Issue 3 – Is [the applicant] a member of the same family unit as a person in respect of whom Australia has protection obligations, as a refugee or on complementary protection grounds, and that person holds a protection visa of the same class?
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)(b) or (c).
Conclusion
Having concluded that [the applicant] does not meet the criterion in s.36(2)(a), (aa), (b) or (c), [the applicant] does not satisfy the criterion in s.36(2) of the Act. As [the applicant] does not satisfy any of the criteria for a protection visa, he cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Susan Trotter
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.
…
"significant harm" means harm of a kind mentioned in subsection 36(2A).
…
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
…
(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.
…
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.

[2017] AATA 2838

3 November 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction