1711135 (Refugee) - [2021] AATA 4513

1711135 (Refugee) [2021] AATA 4513 (3 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711135
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Alison Murphy
DATE:3 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 November 2021 at 9:27am
CATCHWORDS
REFUGEE – protection visa – Malaysia – claims in written application abandoned at hearing and different claims made – departed while on bail for criminal charges – plea of guilty to two charges and third pending – application made in order to extend stay – punishment for criminal offences not usually persecution because of lack of discriminatory element – significant harm for purposes of complementary protection – real chance of imprisonment – country information about prison conditions – poor conditions due to inadequate resourcing rather than intent by authorities – applicant’s marriage to Malay national in Australia and child together – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZRTN v MIAC [2013] FCCA 583
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 17 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 18 January 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection by Australia.
On 20 August 2021 the Tribunal wrote to the applicant advising him that due to ongoing COVID-19 restrictions in Melbourne, the Tribunal was currently unable to conduct in-person hearings. The Tribunal’s letter asked the applicant to identify whether he had the capacity to participate in a video hearing using his own laptop, tablet, smart phone or desktop computer and advised him that if he did not respond, the review application would be listed for hearing by telephone. The applicant did not respond to the Tribunal’s letter.
On 31 August 2021 the Tribunal wrote to the applicant inviting him to appear before the Tribunal by telephone on 1 October 2021 at 9:00am. At the time scheduled for the hearing the applicant answered the Tribunal’s call and told the hearing attendant that he had mistakenly thought the hearing was scheduled for 1:30pm rather than 9:00am and he was unable to participate in the hearing at the scheduled time.
The hearing was rescheduled to 18 October 2021 at 9:30am and the applicant gave evidence by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1711135 (Refugee)

Details

AGLC: 1711135 (Refugee) [2021] AATA 4513
Case: [2021] AATA 4513
Decision Date: 3 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a Malaysian citizen who sought a protection visa in Australia. The applicant's claims for protection at the hearing differed significantly from those made in his initial application. He had arrived in Australia on a visitor visa in October 2016 and subsequently married a Malaysian national in Australia, with whom he has a child and cares for her two children from a previous relationship. The applicant had also departed Malaysia while on bail for criminal charges, having pleaded guilty to two charges with a third pending.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under the 'refugee' criterion, or alternatively, under the 'complementary protection' criterion. Specifically, the Tribunal had to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there was a real risk of significant harm to him as a necessary and foreseeable consequence of his removal from Australia to Malaysia.

The Tribunal found that the applicant did not satisfy the 'refugee' criterion. It also considered the 'complementary protection' criterion, which requires a substantial ground for believing there is a real risk of significant harm upon removal. The Tribunal noted that punishment for criminal offences is generally not considered persecution unless it lacks a discriminatory element. While acknowledging the applicant's concerns about potential imprisonment due to his criminal matters, the Tribunal found that the country information did not establish a real risk of significant harm, as the reported poor prison conditions were attributed to inadequate resourcing rather than intentional infliction of suffering by the authorities. The Tribunal also found that the applicant had not established that he was a member of the same family unit as a person who held a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, as he did not satisfy the criteria under section 36(2) of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. At hearing he stated he grew up and lived in Kelantan and departed Malaysia by air through Kuala Lumpur. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.The applicant’s personal background At hearing the applicant gave evidence that he grew up in Kelantan, Malaysia. His mother and older brother remain living there, while his father passed away after the applicant arrived in Australia. He completed a Diploma in [Subject] at age 23 and then had his own small business selling [product]. The applicant arrived in Australia [in] October 2016 as the holder of a visitor visa. I accept each of the above matters to be true. In making those findings I note that the applicant’s evidence at hearing was significantly different from the contents of his protection visa application in respect of his education and employment history. The applicant gave evidence that the information in his protection visa application that suggested he had worked as [an Occupation 1] in Penang and [an Occupation 2] in Khota Bahru was not correct and he had not done either of those things. The applicant stated that a friend of his completed his protection visa application and some parts of the information provided in that application are not correct. I accept the applicant’s evidence in this regard.The applicant’s claims for protection In his protection visa application, the applicant stated (in summary) that he left Malaysia because the Malaysian Indian Party in Kelantan had raised racist sentiments against ethnic Malays and some of his family and friends had been attacked on the streets and it was dangerous for him to remain in Malaysia. He stated that if he returns to Malaysia, he believes he will be beaten by Indian people because he is living in their territory. He said that he had been threatened by an Indian man on the way home and he did not seek help from the Malaysian police because his family had already tried to seek help, but no action had been taken. However at hearing the applicant gave completely different reasons for travelling to Australia and seeking protection. He gave evidence that at the time he travelled to Australia he intended only to visit and then return home but that he was no longer intending to return home because he has a family here in Australia and a lot of things have changed. He has married a Malaysian national in Australia and they are looking after the two children from her previous relationship as well as a child they have together. When I asked the applicant if he was aware of what had been written in his protection visa application, he said he couldn’t really remember but he thought it was something about racists. When I asked him his reason for travelling to Australia in 2016, he stated that his intention was to come for a holiday, but he also had some court cases coming up in Malaysia and wanted to wait for the situation to calm down.

Evidence

Evidence Before The Court

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. At hearing he stated he grew up and lived in Kelantan and departed Malaysia by air through Kuala Lumpur. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.The applicant’s personal background At hearing the applicant gave evidence that he grew up in Kelantan, Malaysia. His mother and older brother remain living there, while his father passed away after the applicant arrived in Australia. He completed a Diploma in [Subject] at age 23 and then had his own small business selling [product]. The applicant arrived in Australia [in] October 2016 as the holder of a visitor visa. I accept each of the above matters to be true. In making those findings I note that the applicant’s evidence at hearing was significantly different from the contents of his protection visa application in respect of his education and employment history. The applicant gave evidence that the information in his protection visa application that suggested he had worked as [an Occupation 1] in Penang and [an Occupation 2] in Khota Bahru was not correct and he had not done either of those things. The applicant stated that a friend of his completed his protection visa application and some parts of the information provided in that application are not correct. I accept the applicant’s evidence in this regard.The applicant’s claims for protection In his protection visa application, the applicant stated (in summary) that he left Malaysia because the Malaysian Indian Party in Kelantan had raised racist sentiments against ethnic Malays and some of his family and friends had been attacked on the streets and it was dangerous for him to remain in Malaysia. He stated that if he returns to Malaysia, he believes he will be beaten by Indian people because he is living in their territory. He said that he had been threatened by an Indian man on the way home and he did not seek help from the Malaysian police because his family had already tried to seek help, but no action had been taken.

Decision

Reasons for decision

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 criteria in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Alison MurphyMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. At hearing he stated he grew up and lived in Kelantan and departed Malaysia by air through Kuala Lumpur. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.The applicant’s personal background At hearing the applicant gave evidence that he grew up in Kelantan, Malaysia. His mother and older brother remain living there, while his father passed away after the applicant arrived in Australia. He completed a Diploma in [Subject] at age 23 and then had his own small business selling [product]. The applicant arrived in Australia [in] October 2016 as the holder of a visitor visa. I accept each of the above matters to be true. In making those findings I note that the applicant’s evidence at hearing was significantly different from the contents of his protection visa application in respect of his education and employment history. The applicant gave evidence that the information in his protection visa application that suggested he had worked as [an Occupation 1] in Penang and [an Occupation 2] in Khota Bahru was not correct and he had not done either of those things. The applicant stated that a friend of his completed his protection visa application and some parts of the information provided in that application are not correct. I accept the applicant’s evidence in this regard.The applicant’s claims for protection