1707101 (Refugee)

[2017] AATA 1828

1707101 (Refugee) [2017] AATA 1828 (9 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707101

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Paul Windsor

DATE:9 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 09 October 2017 at 12:11pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Single mother – Financial hardship

LEGISLATION

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

Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas [in] December 2016. The delegate refused to grant the visas on the basis that there was no information before the delegate to suggest that the applicants will be targeted for harm on their return to Malaysia for one or more of the reasons in paragraph 5J(1)(a) of the Act.  The delegate also found that there was not a real risk that the applicants would suffer significant harm on return to Malaysia for economic or any other reasons.

3. The applicants applied to the Tribunal for review of this decision on 4 April 2017.

4. The applicants appeared before the Tribunal on 4 October 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8. 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.  

9. 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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In her Protection visa application[1] the principal applicant claims to be a citizen of Malaysia who was born in Klang, Selangor state Malaysia [in date].  She indicated she belongs to the Chinese ethnic group, is Buddhist, and that she speaks, reads and writes Chinese and speaks English.  She indicated that she was married in December 2008 but divorced [in] February 2010.  The applicant stated she departed Malaysia legally [in] October 2016 and entered Australia [in] October 2016, on a Visitor visa.

    [1] See Departmental [file] (not folioed).

12. In his Protection visa application[2] the secondary applicant, who claims to be the principal applicant’s son, indicates he is a citizen of Malaysia who was born in Klang, Selangor state Malaysia [in date].  He states he belongs to the Chinese ethnic group, is Buddhist, and that he speaks, reads and writes Chinese and speaks English.  He indicated that he has never married or been in a de facto relationship.  The secondary applicant stated he departed Malaysia legally [in] October 2015 and entered Australia [in] October 2015, on a Visitor visa.

    [2] See Departmental [file] (not folioed).

    Claims from the Protection visa application

13. The principal applicant’s claims from her Protection visa application[3] are summarised as follows:

    ·She left Malaysia with her son because her family’s economy is getting worse.  As a single mother, it is very difficult for her to ‘raise and give pleasure to her son’.  This became more serious due to the increasing cost of living in Malaysia.  Her monthly commitments became higher than her monthly income.  Malaysia is facing some real challenges over and above lower oil prices, the falling value of the Ringgit, and a slowdown in the rate of economic growth.

    ·If she returned to Malaysia she would not be able to support and take care of her family due to the cost of living.

    [3] See Departmental [file] (not folioed).

14. The secondary applicant indicated that he left Malaysia because he followed his mother to come to Australia[4].

    [4] See Departmental [file] (not folioed).

    Evidence from the hearing of 4 October 2017

15. At the hearing the principal applicant indicated that prior to coming to Australia she lived at her parents’ home in Klang in Selangor state (the address given at question 81 of her protection visa application).  She indicated that her parents are now deceased but said her [brother]  lives at that address.   The principal applicant indicated that she has a second, older son (aged [age] years) in Malaysia who also lives at that address.  She said her older son is [an occupation].

16. The principal applicant indicated that she worked part-time in [Malaysia].

17. When asked why she came to Australia, the principal applicant said she came to work to earn more money to support her son’s studies.  She indicated that her son is not studying in Australia at the moment but commented that she needed to work to save some money for his future studies.  She indicated that while she is working in Australia her son is not.

18. The Tribunal asked the principal applicant what would happen to her if she had to return to Malaysia.  She replied that nothing would happen.  The Tribunal asked her why, in that case, she had applied for a Protection visa.  She said she wanted to remain in Australia so she could work, so that she could financially support her son’s studies.  She commented that her salary is extremely low in Malaysia and it is important to support her son’s studies.  She added that her son had stopped his studies in 2014 when he was [age] years old and he wished to [study].

19. The secondary applicant indicated that he had nothing he wished to add to his mother’s comments.

    Findings and reasons

20. The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Malaysia, there is a real risk they will suffer significant harm.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity

22. On the basis of the copies of the applicants’ Malaysian passports provided to the Department[5], the Tribunal accepts that the applicants are both citizens of Malaysia and that their identities are as they claim them to be.  The Tribunal accepts that Malaysia is the applicants’ ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.  

    Assessment of claims

    [5] See folio 90 of Departmental [file].

23. Based on the applicants’ evidence at the hearing the Tribunal finds that there is nothing to suggest that there is a real chance the applicants would suffer persecution involving serious harm for one or more of the five reasons set out at paragraph 5J(1)(a) of the Act should they return to Malaysia.  The Tribunal accepts that the principal applicant is a single mother who has come to Australia to work because she wishes to be able to earn more money than she has been able to in Malaysia so she can save money to fund a course or courses of study for her younger son (the secondary applicant).  However, considering the principal applicant was working in Malaysia, that she was living in the family home with her brother and her two children, including her elder son who is [employed], and that she indicated at the hearing that nothing would happen to her if she had to return to Malaysia, the Tribunal finds that the applicants would not suffer serious harm such as significant economic hardship that threatens their capacity to subsist; denial of access to basic services, where the denial threatens their capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist, as outlined in the (non-limiting) instances of serious harm detailed in paragraph 5J(5) of the Act.

24. In reaching this conclusion the Tribunal has also given consideration to country information from DFAT[6] (and Focus Economics as indicated) detailed below, as discussed with the applicants, which indicates that, notwithstanding some economic challenges in recent years, the Malaysian economy continues to perform reasonably well:

    ·Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy.  In 2015 its GDP growth was five per cent and per capita GDP was over          USD11, 000. 

    ·Economic growth in 2016 is predicted to be 4 to 5 per cent.

    ·Since independence, Malaysia has transformed from a commodity-based economy, focused on rubber and tin, to a leading producer of electronic parts and electrical products and exporter of palm oil, oil and gas. Manufactured goods made up 76 per cent of Malaysia’s exports in 2012. Malaysia is ASEAN’s largest energy exporter and the government’s largest revenue source comes from the state-owned oil company Petronas.  The 2015-2016 drop in oil price has negatively affected government revenues. 

    ·Malaysia’s economic growth has led to a significant reduction in poverty with the share of households living below the national poverty line (USD8.50 per day in 2012) falling from over 50 per cent in the 1960s to 0.28 per cent in 2016.

    ·The UNDP’s Human Development Index ranked Malaysia 62 out of 188 countries in 2015, placing it in the ‘high human development’ category.

    ·In December 2015, the Malaysian Department of Statistics reported a labour force participation rate of 67.8 per cent and an unemployment rate of 3.3 per cent. 

    ·Inflation in 2015 was reported to be 2.7 per cent, the same level as 2014 and down from 3.2 per cent in 2013.[7]

    [6] DFAT Country Information Report, Malaysia, 19 July 2016.

    [7] 2017, Focus Economics, Malaysia Economic Outlook, January 24.  Sourced at < >

    The Tribunal concludes that the state of the Malaysian economy is not such that the applicants cannot subsist in Malaysia.  The Tribunal also finds that there is not a real risk that the applicants would suffer significant harm, including being subjected to cruel or inhuman treatment or punishment; or degrading treatment or punishment, due to the state of the Malaysian economy or the cost of living in Malaysia, or for any other reason, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia.

25. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

26. There is no suggestion that either 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,          they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

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

    Paul Windsor
    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.

    …