1709943 (Refugee)

[2018] AATA 3928

1709943 (Refugee) [2018] AATA 3928 (10 September 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1709943

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:  Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          10 September 2018 at 3:02 pm (WA time)

DATE OF WRITTEN RECORD:                26 September 2018

PLACE OF DECISION:  Perth

DECISION:  The Tribunal affirms the decision under review.

Statement made on 26 September 2018 at 10:07am

CATCHWORDS

REFUGEE – protection visa –Malaysia – fear of harm – abuse by stepfather – suffer from emotional harm – credibility issues – incorrect answers provided on application form – no details of specific instances of abuse – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J , 36
Migration Regulations 1994 (Cth), 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.

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement

which may identify the applicant or any relative or dependant of the applicant.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 May 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

1. At the hearing on 10 September 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

STATEMENT OF DECISION AND REASONS

1. An edited transcript of the oral reasons for decision provided to the applicant on that date is attached to this decision record.

DECISION

1. The Tribunal affirms the decision under review.

Dr Colin Huntly Member

ORAL DECISION OF MEMBER HUNTLY  [2.31 pm]

MEMBER: The criterion in s.5J(1)(a) of the Act contains a subjective requirement that an applicant must, in fact, hold a fear of being persecuted. At s.5J(1)(b) there is a requirement that there must be an objective fear of a real chance that the applicant be persecuted. A real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

A person who genuinely fears persecution for one or more of the reasons in the refugee definition, namely race, religion, nationality, political opinion or membership of a particular social group, and that reason is the essential and significant reason for the persecution that amounts to systematic and discriminatory conduct and involves serious harm, a person will be eligible for a protection visa under the refugee definition.

In determining if an applicant has a well-founded fear of persecution the Tribunal is also required to consider the availability of adequate state protection. Under s.36(2B) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the applicant could obtain from an authority of the country protection such that there would not be a real risk that they would suffer significant harm. (Ie: the level of protection must be such that it would reduce the risk of the applicant being significantly harmed to something less than a real risk).

For complementary protection purposes the Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of an applicant suffering significant harm. The Tribunal also notes that the real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution.

Identity

The Tribunal has had regard to the applicant's passport which was provided to the Department for Immigration by the applicant, and is contained within the Departmental file relating to the applicant's application for protection. On the basis of the information before the Tribunal there is nothing to suggest that the applicant is not the person who appears on the passport.

Accordingly the Tribunal finds the applicant is a national of Malaysia, and that he does not have a right to enter and reside in a third country. The Tribunal, therefore, finds the receiving country for the purposes of s.36(3) of the Act is Malaysia.

Background

The Tribunal notes that the applicant was granted a [temporary] visa on 25 July 2016. The Tribunal further notes that the applicant arrived in Australia on 1 August 2016.

On 13 October 2016 the applicant applied for a Protection visa. That application was rejected by a delegate of the Minister for Immigration on 4 May 2017. The applicant applies to this Tribunal for a review of that decision.

The applicant appeared before the Tribunal on two occasions to answer questions and present arguments. The first hearing was held on 28 June 2018. The second hearing was held on 10 September 2018. The Tribunal was assisted in both hearings by the services of an interpreter fluent and accredited in both the English and Malay languages. The applicant was not represented in this application by a registered migration agent.

Country information

The Tribunal discussed with the applicant the available country information. The Tribunal specifically relied on the summary of country information provided in the Delegate's record of decision, which is consistent with that contained in the Department's own publication, dated 3 July 2018 entitled "Malaysia: Common Claims". The Tribunal accepts the summary of country information for Malaysia contained in the summary of the Delegate, with the addition of the Department's document dated 3 July 2018 entitled "Malaysia: Common Claims" and the Department of Foreign Affairs and Trade Country Information Report for Malaysia, dated 19 April 2018.

Claims

The Tribunal has considered the applicant's claims for protection which appear in summary form in Part 4 of the delegate's record of decision as follows:

·    He left Malaysia because he was abused by his stepfather.

·    If he returns to Malaysia he will suffer from emotional and mental disorders.

·    He ran away while in Malaysia, but was located and his friend [Mr A] suggested he come to Australia.

·    If he returns to Malaysia his stepfather will find him because he has many links and he will suffer emotional harm.

In addition to these claims the applicant provided considerable further information at the hearing held earlier today. Specifically, the applicant claims to have had a stepfather since about [age years old] and that he has been severely disciplined by his stepfather, involving incidents of corporal punishment.  This occurred over many years.

The applicant also claims to have lived in a number of locations around Malaysia, having lived with his maternal grandmother between the age of approximately [age years old] to [age years old], after which time he resided with his mother and stepfather.

The applicant does not claim to have made any reports to police while living in Malaysia, and that, besides leaving home at [age years old], he registered his protests with his mother about his stepfather's behaviour, but took no other action.  The applicant claims that his stepfather is involved with illegal drugs and, quote, "He has been in prison many times, but he has not changed his behaviour."

Discussion

The Tribunal took the applicant through the Delegate's findings, pointing out that there was an inference that the Delegate found the applicant's claims to lack credibility. The Tribunal also asked the applicant why he had not provided the level of detail to his claims provided at the second hearing with the Tribunal either in his original application or at the first hearing when first invited to do so by the Tribunal.

The applicant suggested he did not understand the full importance of the Tribunal’s first invitation and that his application Form was filled out on his behalf by a friend – [Mr A]. The Tribunal asked the applicant when he first realised he should have advised the relevant authorities in Australia of this level of detail relating to his claims for protection. He indicated that this occurred to him after his first hearing with the Tribunal. The Tribunal pointed out to the applicant that this reflected poorly on his credibility, especially when the applicant had been put on notice of these credibility concerns in the Delegate's record of decision in May 2017.

The Tribunal asked the applicant if he had any response to the findings made by the Delegate. The applicant indicated that he did not have any response to the Delegate's concerns.

The Tribunal also took the applicant through his responses to questions in his original application Form. The applicant accepted that his Form was not correct as to his family status. When asked why he did not accurately and completely describe his family relationships in the Form, the applicant gave a number of different responses to the question. The Tribunal pointed out that the applicants varying answers to this question suggested that he was not being truthful with the Tribunal. The applicant did not make any response to this observation.

The Tribunal asked why he had indicated he was in touch with his family in Malaysia in the Form, but he has stated to the Tribunal that he had had no contact with his family in years. The applicant gave various and variable responses to this question.

The Tribunal also noted that the applicant had incorrectly indicated in his Form that he had no personal contacts in Australia. The applicant accepted that this answer was not correct, either when it was made or subsequently.

When the Tribunal asked the applicant why his employment and residential history was not complete in his original application Form, the applicant again provided varying responses. These included words to the effect that the applicant did not believe the answers were important; and that the job that was listed as his only employment in Malaysia before arriving in Australia was a part-time job. The Tribunal notes that no explanation was given by the applicant in his response as to why he failed to include information about his full-time employment in Malaysia, or why his answers to the relevant questions in the Form were different to the answers received at the hearing.

The applicant also stated that the responses provided to the claims sections in this Form were written by his friend [Mr A], and continued to assert that these were provided on the applicant’s instructions.

The Tribunal pointed out the credibility issues created by his declarations at Questions 99 to 101 in the Form relating to the accuracy of the information contained within that Form, and the extent to which he received assistance in completing it.

The Tribunal notes that, when questioned, the applicant was unable to provide the Tribunal with any details of relevance relating to specific instances of abuse. The Tribunal also notes that the applicant had lived away from his family home for approximately 12 months before arriving in Australia; that despite his stepfather's considerable criminal record referred to by the applicant during the hearing, none of the family had ever made any police reports about abuse.

Given that the lack of detailed information provided by the applicant relating to his claims, including dates, places or relevant circumstances of the type that the Tribunal would expect to be provided in connecton with such claims, the Tribunal does not accept that any abuse of the nature alluded to by the applicant has ever occurred. The Tribunal also notes that, when questioned at the hearing, the applicant was not able to identify any specific harm he feared on return to Malaysia.

Findings

On the basis of a foregoing analysis of the applicant's evidence the Tribunal finds the applicant's claims for protection are not credible. Accordingly the Tribunal finds the applicant does not hold a well-founded fear of persecution if he returns to Malaysia, now or in the reasonably foreseeable future.

Further, the country information discussed with the applicant at the hearing satisfies the Tribunal the Malaysian authorities, including the RMP, and the judiciary are reasonably effective in protecting persons within Malaysia. Therefore, having regard to country information referred to, I find that the receiving state or party or organisation that controls the state, or relevant part of the state, or a substantial part of the territory of the relevant state could provide protection against persecution of the type referred to by the applicant in his application for protection.

I note that the applicant's claims do not engage any of the definitions in s.5H of the Act. Accordingly the criterion in s.36(2)(a) of the Act is not satisfied. For that reason, I find that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.

The Tribunal is also required to consider the applicant's entitlement to complementary protection at s.36(2)(aa) of the Act, where an applicant is entitled to protection if the decision-maker is satisfied the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations, because there are substantial grounds for believing that

as a necessary 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.

I note that, at s.36(2B)(b) of the Act, an applicant is not entitled to complementary protection if there are effective protection measures available to the applicant in a receiving country.

I have considered the particulars of the applicant's claims against this particular standard of protection cumulatively and individually. I am satisfied the applicant could obtain from the RMP and other Malaysian authorities, as discussed in the country information already, protection, such that there would not be a real risk that he would suffer significant harm.

Therefore, even if it were to be accepted that the applicant genuinely held a well-founded fear of persecution, it should be taken that there is not a real risk that the applicant would suffer significant harm by virtue of section 36(2B)(b) of the Act. Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined in section 36(2)(aa) of the Act.

On the basis of the reasons discussed above, having considered all of the applicant's claims for protection individually and then cumulatively and having discussed fully with the applicant the Delegate's record of decision, which the applicant provided to the Tribunal, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under either ss.36(2)(a) or 36(2)(aa) of the Act. Accordingly an assessment in relation to s.36(2C) has not been made.

Decision

The decision of the Tribunal is that it affirms the decision not to grant the applicant a protection visa.

END OF ORAL DECISION   [3.02 pm]