1708472 (Refugee)

1708472 (Refugee) [2021] AATA 4445 (5 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708472
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:David McCulloch
DATE:5 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 October 2021 at 8:56am
CATCHWORDS
REFUGEE – Protection visa – Malaysia – ID and passport have been blocked – issues with his uncle – provided false written claims in his original application for the protection visa – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIEA v Guo & Anor (1997) 144 ALR 567
Luu & Anor v Renevier (1989) 91 ALR 39
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 October 2015 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 19 January 2015. The delegate refused to grant the visa on the basis that the Malaysian authorities would provide effective protection to the applicant against any harm he faces from criminals should he return to Malaysia.
The applicant was not offered an interview by the Department.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams on 29 September 2021 at 9:30 am.
The hearing was held during the COVID-19 pandemic. The Tribunal determined that it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal was assisted through the use of an interpreter in the Tamil (Sri Lankan) and English languages who also attended the hearing by video using Microsoft Teams. The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Malaysia, 29 June 2021, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant, and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia on a UD-601 Electronic Travel Authority visa on [date] October 2016. The applicant then applied for an XA-866 Protection visa on 10 January 2017. The applicant had never visited other countries other than Australia. Departmental movement records indicate that the applicant departed Australia [in] October 2018 returning [in] December 2018.
The following information is apparent from the application for protection forms. The applicant was born on [date] in [Sabah], Kota Kinabalu. The applicant is a Muslim of Indian ethnicity who speaks, reads, and writes Tamil, Malay and English. The applicant is married and has one son, born [date], and one daughter, born [date]. His wife and children reside in India, and the applicant keeps in contact with them via telephone. The applicant states that he has a father and mother, both of whom are Indian citizens, but did not provide other details of his parents. The applicant lived at one address in [Sabah], from birth until October 2016. The applicant lived at one address in Victoria, Australia, from October 2016 until the date of application. The applicant attended in relation to his education [School 1] from 1995 to 2001 and [School 2] from 2002 to 2007, graduating from [School 3] in 2007. The applicant did not provide details as requested of his employment and unemployment periods.
In the application forms, the applicant claimed that his cousin witnessed a drug dealing crime in Sabah and came to Australia to seek protection. The applicant stated that after his cousin left, the drug dealer went after the applicant to get to his cousin. The applicant claimed that on one occasion, ‘they’ hit him very badly and threatened to kill him. The applicant had made a police report but the police did not help much and did not take any action. The applicant tried to move to ‘KL’ but feared he be would be found due to the group’s large number of members. He left Malaysia because he feared he would be killed by the drug dealer.
Hearing, credibility, findings, and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169‑70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45, nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by applicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Malaysia and accordingly his claims will be assessed against Malaysia.
The applicant in the hearing gave evidence that he became separated and estranged from his parents when, at the age of about [age], he went to live with an uncle who ran a grocery store. After finishing school, the applicant worked in this grocery store until he got married in 2012. The applicant’s wife was Indian. The applicant considered that he was being exploited by his uncle and treated as a slave and his income was not able to sustain him in his marriage.
The applicant at the time of his marriage relocated to Kuala Lumpur where he worked in a [business]. The applicant then had a period of two months working in [Country 1] in another grocery store. The applicant then returned to Malaysia and in Kuala Lumpur he opened his own [business], but in the name of another person. After the applicant’s wife had their first child, she and the child came from India to live with the applicant in Kuala Lumpur.
The Tribunal asked the applicant why his [business] was opened in the name of another person. The applicant indicated that this was because he did not want his uncle with whom he had worked in Sabah to find out about the [business]. The applicant indicated that his uncle had connections and an ongoing desire to force the applicant to return to Sabah and work for him like a slave in other grocery stores he had opened. The applicant indicated that his uncle had contacted Immigration in relation to the applicant and caused the applicant’s ID and passport to be blocked. The applicant indicated that he realised the nefarious actions of his uncle when the Immigration office in Sabah contacted him to asked him to attend an appointment. The applicant then realised the adverse influence of his uncle. It was for this reason that the applicant came to Australia. The applicant indicated that he cannot return to Sabah because of the potential harm from his uncle. The applicant indicated that his uncle has significant influence. However, the applicant did indicate in the hearing that he would be safe living in Kuala Lumpur, although his uncle would initiate actions to force the applicant to return to Sabah.
The Tribunal explored with the applicant how it was he could have travelled to Australia in 2016 if his passport had been blocked. In response, the applicant indicated that his current passport was not blocked, but he would not be in a position to renew his passport.
The Tribunal asked the applicant how he knew this to be the case. The applicant indicated that about three years previously, he had obtained a bridging visa to leave Australia and he returned to Kuala Lumpur. The applicant indicated that he had wanted to travel to India to visit his wife and children, who had returned there, and had applied for a renewal of his passport which only had five months validity, which prevented obtaining a visa for India. The applicant indicated that his application for the renewal of his passport was rejected as a result of the influence of his uncle.
The applicant then indicated his wife and children visited him in Kuala Lumpur before he returned to Australia.
The applicant also indicated that he cannot return to Malaysia because his ID and passport have been blocked and this will create difficulties in terms of official and administrative arrangements.
The applicant indicated in the hearing that the blocking of his ID card and passport and issues with his uncle are the only reasons that he cannot return to Malaysia.
The Tribunal put to the applicant that when making the application for the protection visa in 2016, he had made very different claims. He had claimed that he faces harm because of his cousin witnessing illegal drug activity causing his cousin to flee and those involved in the criminal activity then targeting the applicant for harm.
In response, the applicant indicated that these claims were not correct and had been suggested to him by a person who was helping him fill in the application form. The Tribunal indicated to the applicant that it had significant credibility concerns in relation to him as a result of providing false written claims in his original application for the protection visa, particularly when he had what he indicated were genuine claims as to a fear of harm on return.
In response, the applicant indicated that he had provided these false claims because it had been forcefully suggested by his friend helping him, who had indicated that the genuine claims could be provided at interview or hearing. The applicant also indicated that he was hampered at this point by his poor knowledge of English.
As put to the applicant in the hearing, the Tribunal is not satisfied that if the applicant had genuine fears of harm on return to Malaysia based on issues relating to his uncle and his identity and passport being blocked, these would not be the reasons that the applicant would have included in the written application for protection.
This is significantly undermining of the applicant’s credibility both generally and in relation to his new claims indicated in the hearing.
The Tribunal is not satisfied that the applicant is a truthful or credible witness.
The Tribunal is not satisfied that the applicant’s uncle in Sabah has a desire to use significant influence to force the applicant to return to Sabah to facilitate the applicant to work as a slave in one of his grocery stores or otherwise cause him harm. The Tribunal is not satisfied that the applicant’s uncle has caused authorities in Malaysia inappropriately to block the applicant’s identity or ability to renew his passport. The Tribunal is not satisfied that the applicant’s uncle or authorities in Malaysia have any adverse interest in the applicant or that authorities have acted in any adverse way in terms of the applicant’s identity and passport.
On the applicant’s clear indication in the hearing that his original written claims were not truthful, the Tribunal is not satisfied that the applicant faces any requisite harm as a result of his cousin witnessing illegal drug activity.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4445

5 October 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction