Evidence
Evidence Before The Court
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 (the Department) – PAM3 Refugee and humanitarian - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, Country Information Report – Malaysia dated 19 April 2018. To the extent that it pertains to this decision, the DFAT Country Information Report – Malaysia dated 19 April 2018 contains comparable information to that provided to [the applicant] for comment from DFAT’s Country Information Report – Malaysia dated 19 July 2016.CONSIDERATION OF CLAIMS AND EVIDENCE [The applicant] was born on [date]and is [age] years of age. Before coming to Australia he lived with his parents and younger sister in an apartment owned by his mother in [a suburb]near Kuala Lumpur. He has [several siblings]who have their own families and do not live in [their]apartment. [The applicant]’s father has been in [a role]for the last two years and before that he was [in another role]. His younger sister, who is [age] years old, works at[a shop]. His older sisters work as the manager of a [shop] and a sole trader selling[goods]. [The applicant]’s younger brother, who is [age] years old, works for a [company]. [The applicant] left the family home a week before coming to Australia and stayed with his younger brother and his family. However, he saw his parents at the airport before coming to Australia on [date] January 2017. [The applicant] left school in [year], at[age], and worked for a year at a [shop] and at [another]company for one year. In about 2007 [the applicant] started working for [Company 1 in a certain role]. After five years he moved to [a different role]. He resigned from [Company 1] on 31 December 2016. [The applicant] told the Tribunal that he travelled to [Country 1] in September 2016 with a friend, although the Tribunal notes that the stamp in his passport has him entering [a district] on 29 November 2016 and departing on 30 November 2016. He told the Tribunal that he went to [Country 2] in November 2016 with a different friend. The Tribunal again notes that his passport is stamped with an entry into [Country 2] on 28 December 2016 with a return to Malaysia on 29 December 2016. [The applicant] told the Tribunal that he had been planning to come to Australia since 2015. He was granted a visa on 23 December 2016 and arrived in [Australian city 1] on [date] January 2017 as the holder of [a temporary]visa with three friends (including the friends he travelled with to [Country 1] and [Country 2]). [The applicant] told the Tribunal that his friends only came for a visit, but he came to Australia for protection because he was threatened. The day after his arrival [the applicant] went to [Australian city 2] for two weeks to see a friend of his older sister’s and then he followed his friend to [Australian city 3] for three weeks. In [Australian city 2] he was supported by his sister’s friend and in [Australian city 3] his friend’s friend paid for food and transport. [The applicant] said he did not have any other expenses and did not work in [Australian city 2] or [Australian city 3]. [The applicant] then returned to [Australian city 1] where he lives in [a suburb]with two of the friends he arrived with and a third friend (one of the friends he arrived with has returned to Malaysia). He is now working in [an industry] for[a company].Nationality
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.Mireya HylandMemberATTACHMENT - 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.…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 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...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.…
Ratio Decidendi
Legal Principle Established
An applicant for a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act, that is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ or ‘complementary protection’ criteria, or is a member of the same family unit as that person and that person holds a protection visa. In the case of persons who have a nationality, the refugee criterion is that they are outside their country of 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). If a person does not meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if he or she is entitled to complementary protection. The complementary protection criterion requires that 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). Additional requirements relating to the criteria are extracted at the end of this decision.Mandatory Considerations 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 (the Department) – PAM3 Refugee and humanitarian - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, Country Information Report – Malaysia dated 19 April 2018. To the extent that it pertains to this decision, the DFAT Country Information Report – Malaysia dated 19 April 2018 contains comparable information to that provided to [the applicant] for comment from DFAT’s Country Information Report – Malaysia dated 19 July 2016.CONSIDERATION OF CLAIMS AND EVIDENCE [The applicant] was born on [date]and is [age] years of age. Before coming to Australia he lived with his parents and younger sister in an apartment owned by his mother in [a suburb]near Kuala Lumpur. He has [several siblings]who have their own families and do not live in [their]apartment. [The applicant]’s father has been in [a role]for the last two years and before that he was [in another role]. His younger sister, who is [age] years old, works at[a shop]. His older sisters work as the manager of a [shop] and a sole trader selling[goods]. [The applicant]’s younger brother, who is [age] years old, works for a [company]. [The applicant] left the family home a week before coming to Australia and stayed with his younger brother and his family. However, he saw his parents at the airport before coming to Australia on [date] January 2017. [The applicant] left school in [year], at[age], and worked for a year at a [shop] and at [another]company for one year. In about 2007 [the applicant] started working for [Company 1 in a certain role]. After five years he moved to [a different role]. He resigned from [Company 1] on 31 December 2016.
