1707382 (Refugee)

[2018] AATA 782

1707382 (Refugee) [2018] AATA 782 (9 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707382

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:9 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 9 March 2019 at 9.52am

CATCHWORDS
Refugee – Protection visa – Malaysia – State protection available

LEGISLATION
Migration Act 1958, ss 5, 36, 65
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

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 on [date] March 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on [date] January 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3.The applicant appeared before the Tribunal on 12 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

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 themselves of the protection of that country.[1] 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.[2]

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

[1] s.5H(1)(a) of the Act

[2] s.5H(1)(b) of the Act

1. 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

The applicants’ migration history

1. The applicant arrived in Australia on [date] November 2016 as a holder of a [temporary] Visa. On [date] January 2017 he applied for a protection (Class XA-866) visa and was granted an associated bridging visa.

Country of Reference

1. The Department's [file] contains a photocopy of the applicant's passport issued [in] 2016 in UTC Sabah, Malaysia. It shows he was born in Sabah on [date of birth] and that his nationality is Malaysian. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.

2. Accordingly, the Tribunal finds that the applicant is a citizen of Malaysia and the applicants protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.

3. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

The applicant’s protection claims

1. The applicants written claims for protection are in his application dated [January] 2017 and are based on the fact that he claims to be a volunteer of Sabah Sarawak Union- United Kingdom (SSU-UK). They are and summarised in the delegates decision dated [in] March 2017 as follows (‘written claims’):

   (a)The applicant claims that he is a volunteer of ‘Sabah Sarawak Union – United Kingdom, collecting signatures for a petition to United Nations to get the British Government to review the validation of the 1963 Malaysian Agreement;

   (b)He claims he has been threatened and accused of being a secessionist. He has  been threatened by Malaysia government for his role in this movement;

   (c)He claims Malaysian government allowed the illegal people from Sulu Mindanao (Philippines), Bangladesh and Indonesia to enter Sabah and given them citizenship and identity cards as long as they are willing to covert Islam and vote for the ruling party UNMO. It is no longer safe in Sabah as the natives in Sabah have been exposed to various criminal issues caused by the illegal immigrants;  

   (d)He claims that the native population of Sabah has been outnumbered by the illegal immigrants and the people of Sabah have become a minority. Every criminal incident in Sabah committed by illegal immigrants has been reported to the police, but police did not take any action. Instead the number of illegal immigrants is increasing;

   (e)He did not try to move elsewhere in Malaysia claiming that would be the worst decision because of racist sentiment of Malays. He claims discrimination towards other races like his own is common. He claim that it is difficult for Christian natives to live in Malaysia;

   (f)He claims if returned to Malaysia, he will be charged under the sedition Act 1948. He does not think the authorities in Malaysia will protect those against the Malaysian government.

Applicant’s background

1. The applicant claims that he is Kadazan-Dusun, being a native of Sabah Borneo. He claims to be a Christian and that he speaks, reads and writes English, Kadazan Dusun and Bahasa Malaysian.

2. By his application and his oral evidence to the Tribunal the applicant stated that his parents were alive and continued to live in Malaysia. In addition, he has [siblings] living in Malaysia. The applicant attended [school] [in] Kota Kinabalu, Malaysia until [a certain grade]. After school he worked for a short time with his father as a [occupation] before traveling to Australia.

3. The Tribunal accepts the applicant’s evidence in relation to his family, education and work experience in Malaysia. 

4. The applicant’s evidence was that he was informed in Malaysia that he would be able to find a better job and work legally in Australia. As a result, [in] November 2016 he travelled to Australia to find better work opportunities. 

The applicant’s written claims

1. At the hearing, the applicant referred to and expressly rejected his written claims.

2. His evidence was that he had paid a friend to complete the application form on his behalf. Although he admits to having signed the application form, his evidence was that he did not know the contents of his protection visa application, in particular the written claims.  His evidence was that at the time application was filed with the department on his behalf, he had not read the document nor had the document been explained to him.

3. As a result he said that the written claims were not correct. His evidence was that he was not a member of the SSU-UK and as such did not hold any genuine personal fear of persecution and that there was no real risk of him being significantly harmed upon his return to Malaysia as a result of being a member of the SSU-UK.

4. The Tribunal accepts the oral evidence of the applicant that his written claims were incorrect and finds that he was not in any fear of harm arising from the applicant’s written claims. As a result the Tribunal finds that there is no a real chance of persecution or any real risk of significant harm to the applicant, now or into the reasonably foreseeable future, by reason of his written claims.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or 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[3]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[4]

   [3] s.5AAA Migration Act 1958.

   [4] 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.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[5] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [5]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[6] However, such a benefit should 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.

   [6]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

5. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, in this case the applicant has not expressed any fears of returning to Malaysia.  The applicants evidence was that he had travelled to Australia to find work and that he did not hold any fear of returning to Malaysia.

6. Therefore, based on the applicant’s oral evidence, the Tribunal finds that the applicant does not have a real chance of serious harm arising out of his written claims on return to anywhere within the Federation of Malaysia and in the foreseeable future. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution arising out of his written claims that would satisfy s.36(2)(a).

7. In addition, based on the applicants oral evidence, the Tribunal finds that there are no substantial grounds for believing that there is a real risk the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, Malaysia, will suffer significant harm of any kind arising out of his written claims pursuant to s.36(2)(aa).

Conclusions

1. 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 the Act for the reasons mentioned in s.5J(1)(a) Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. 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). By reason that there is taken not to be a real risk of that the applicant will suffer significant harm under s.36(2B)(b), the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

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

Jason Pennell

Member