1707012 (Refugee)

[2017] AATA 1682

1707012 (Refugee) [2017] AATA 1682 (29 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707012

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Mireya Hyland

DATE:29 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 29 September 2017 at 6:11pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Involvement with gang leader’s ex-girlfriend – Physical abuse and violence

LEGISLATION

Migration Act 1958, ss 5AAA, 5H-LA, 36, 65, 499

Migration Regulations 1994, Schedule 2       

CASES

MIEA v Guo(1997) 191 CLR 559
Nagalingam v MILGEA(1992) 38 FCR 191
Prasad v MIEA(1985) 6 FCR 155

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 applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa [in] November 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied there was a real chance that the applicant would suffer serious or significant harm in the foreseeable future if returned to Malaysia.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail his or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

7. 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 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

8. 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 - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, Country Information Report – Malaysia dated 19 July 2016, to the extent that it is relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant has a real chance of serious or significant harm in the foreseeable future if returned to Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   The Application

10. The applicant included a statement of his claims with his application form. He claimed:

    ·     In May 2016 while drinking in a pub he got to know [Ms A] and he fell in love at first sight. They had a happy chat that evening and exchange mobile numbers. They then frequently kept in contact with over the phone.

    ·     In June 2016 They met at the pub one evening. Suddenly a group of people approached the applicant and kicked over his table. They pulled him away from his chair and bashed him. They yelled at him in an abusive manner stating “how dare you approach our big boss’ woman”. [Ms A] was crying close by and begging them for him.

    ·     They did not stop beating him until the police arrived. Those people told the police he had molested their big boss’ woman. The police asked them a few questions and then just left the pub. Later he learned [Ms A] was the ex-girlfriend of a gang leader. Since the gang leader was harsh to her and involved in illegal conduct she decided to leave him. But the gang leader never stopped harassing her.

    ·     [In] July 2016 the applicant was stopped by a group of thugs. They surrounded him and bashed him. He claimed he had no energy to fight back. After that they warned him that his life would be in danger if he continued to contact [Ms A].

    ·     After they left he reported to the police. However the police would not come to help him because they thought the case was a personal one.

    ·     He was painful all over so he had to visit the hospital. The doctor examined him and gave him a prescription.

    ·     [In] August 2016 the applicant was stopped by a few thugs. They kidnapped him and took him to a shabby house. They took a video of him being beaten up and sent it to him parents. They forced his parents to pay a ransom of [an amount of] ringgit for his release. His parents were so concerned about his safety that they had to give the thugs the demanded money. He was released after two days detention.

    ·     The gangland in Malaysia is really powerful and police are corrupt and even gang up with the underworld to make money.

    ·     Police could not safeguard his safety at all. Therefore he escaped from Malaysia and arrived in Australia.

    ·     After his escape the thugs still went to his home looking for him.

    ·     He is scared to go back to Malaysia.

    The Adjourned Hearing on 7 September 2017

11. On 1 August 2017 the Tribunal wrote to the applicant advising that it had considered all the material before it, but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 7 September at 9:30am. The hearing invitation required that the applicant read, complete, and return the enclosed ‘Response to hearing invitation – MR Division’ form to confirm his attendance at the hearing within seven days of receipt of the hearing invitation. The applicant did not complete and return the ‘Response to hearing invitation – MR Division’ form as requested. The hearing invitation also stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice.

12. The applicant appeared before the Tribunal on 7 September 2017. He spoke with the Tribunal with the assistance of an interpreter in the Malay and English languages. The Tribunal discussed with the applicant the fact that he had not completed and returned the ‘Response to hearing invitation – MR Division’ form as requested. It explained that because the applicant had not informed the Tribunal that he was attending the hearing it already had a full list for that day and would have to adjourn and reschedule his hearing. It informed the applicant that it would send him a letter informing him of the date and time of the resumed hearing and requested that this time he fill in and return the form.

    The Resumed Hearing on 27 September 2017

13. On 7 September 2017 the Tribunal wrote to the applicant to inform him that the resumption of the hearing would be on 27 September 2017 at 10:30am. The letter requested that the applicant complete and return the enclosed ‘Response to resumption of adjourned hearing notice - MR Division’ form to confirm his attendance at the hearing. The Tribunal also sent him an SMS reminder about the resumed hearing five business days and one business day before the scheduled resumed hearing.

14. However, the applicant did not attend the resumed hearing or contact the Tribunal to explain his failure to attend.

    Findings and Reasons

15. The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

16. The Tribunal informed the applicant that it did not have sufficient information to make a favourable decision on the information in his application alone. Unfortunately, because the applicant did not attend the resumed hearing or provide the Tribunal with any additional information, the Tribunal did not have an opportunity to talk to him or otherwise gain more details about his claims. Therefore, it does not have any further information about the fight in the bar relating to the extent of any injuries, whether the police questioned him about the accusation he molested [Ms A], what happened after the police left if they did nothing, how he found out about [Ms A’s] relationship with the gang leader and how [Ms A] was harassed, or who the gang and the gang leader were and if [Ms A] had sought assistance from police.

17. In addition, at a hearing the Tribunal would have sought further information about the incident [in] July 2016 including whether the applicant had in fact continued to see [Ms A], if it was the same thugs as attacked him in the bar, how they knew he was still seeing [Ms A] or how they knew where to find him, why he had no energy to fight back, whether he reported to the police before or after he went to the hospital, and how badly hurt he was from the beating. The Tribunal is also unclear whether the thugs that kidnapped the applicant were related to the gang leader and [Ms A] or someone else, how the thugs delivered the ransom demand to his parents and how his parents delivered the payment, or on whether he or his parents ever told police about the kidnapping.

18. Given the opportunity the Tribunal would have requested details about how many thugs were involved in each incident, his two days in detention, as well as details about the more general claims that the thugs are still looking for him, about underworld power, and about police corruption. Also, there is no information before the Tribunal about why the applicant is scared of or what the applicant fears will happen in the foreseeable future if he returns to Malaysia.

19. There is insufficient information before the Tribunal for it to be satisfied that there is a real chance the applicant will suffer any, let alone serious or significant, harm in the foreseeable future if returned to Malaysia. As such the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution as defined in s.5J of the Act. Therefore, he does not meet the meaning of ‘refugee’ set out in s.5H of the Act. Nor is the Tribunal satisfied that 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.

    Conclusions

20. 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).

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Mireya Hyland
    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.

    …