1718900 (Refugee)

[2023] AATA 529

1718900 (Refugee) [2023] AATA 529 (30 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718900

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Genevieve Hamilton

DATE:30 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 30 January 2023 at 11:06am

CATCHWORDS

REFUGEE – Protection visa – Malaysia –– applicant left Malaysia for economic reasons – applicant abandoned his claim to be at risk from drug dealers – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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 and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 February 2017. The delegate refused to grant the visa on 15 August 2017.

3. The applicant attended a hearing of the Tribunal on 27 January 2023.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

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.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. 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.

    Claims and evidence

16. In his protection visa application the applicant said he was born in Malaysia (Klang, Selangor) on [date] and is a Malaysian citizen.  He has never been married or in a de facto relationship.  His parents and younger brother live in Malaysia.  He did not say whether he was in contact with them.  He said his last date of arrival in Australia was on [date] December 2012 (electronic travel authority).  His Malaysian passport was issued on [date] 2012. 

17. The applicant said he left Malaysia because he joined a gang and was involved in drug dealing from the age of [age].  He needed the money for hospital medicine for his mother.  He did not know the contents of packages over the years because he didn’t open them.  Then a friend told him to open them.  As a result he realised he was delivering drugs.  His friend told him if the police found out and came across this stuff, he might be imprisoned and severely punished.  He threw the drugs into a toilet, took his mother the money he had and decided to escape.  His friends had told him the gang knew he had not delivered their goods to customers, but had kept the money, and ordered its members to locate him and kill him.  His mother ordered him to get out of Malaysia.  After he arrived he heard that his mother had died.  The group until now was tracking him and to this day he does not dare to set foot in Malaysia.  The authorities cannot protect him from being killed and it is not possible to relocate because Malaysia is a small country. 

18. In support of his review application the applicant said he was afraid of being prosecuted and jailed, which would negatively affect his ability to work for his livelihood.  He might also be fined so heavily he would never be able to pay it off, imposing a huge financial burden on his low-income family.  A criminal record would affect his ability to work, and prevent future international travel. 

19. At the hearing the applicant said both his parents and brother were still living in Klang.  His father had worked in construction and his brother was doing something in the line of logistics.  The applicant said he completed middle school (form 5 in Malaysia) when he was about [age] and after that went to work in a trade.  He got work in the same company his father worked for and went to work on a contract in [Country 1].  He was there for 3 or 4 years, returning to Malaysia in 2007 or 2008, at the age of [age].  After that he tried various business ventures but he lost money, partly because his partners were financially untrustworthy.  He was in debt, decided he wouldn’t be able to pay it back and would go to a new country.  He came to Australia to look for opportunities to make money.  His family are helping pay some of what he owed, and he sends them money when he can. 

20. The Tribunal asked the applicant why he only applied for a protection visa in 2017, when he had been in Australia since 2012, meaning his visa expired long before.  The applicant said he didn’t know about protection visas at first.  Then he heard that it might be a way to regularise his visa status so he could work legally.

21. The Tribunal asked the applicant what he thought would happen to him if he returned to Malaysia.  The applicant said he was more concerned about the fact that he felt detached from Malaysia after more than 10 years in Australia; he no longer feels connected to Malaysia.  

22. The Tribunal put to the applicant that his written claims recounted having been an unwitting drug mule, finding this out, and then fleeing the drug dealers, and then that his mother died.  The applicant expressed surprise at this.  He said was not to explain how this information got into his application, he just paid money to someone and did what they said. 

23. The applicant said that he was at one time engaged in online gambling, but nothing else illegal.  He might have been afraid of the authorities at that time but it was a long time ago.  The Tribunal put to the applicant that he did not give the impression of being afraid to return to Malaysia.  The applicant said he was not afraid of anything in particular, but he was uncomfortable at the prospect of starting his life over again in Malaysia. 

    FINDINGS AND REASONS

24. Based on the information in his application, the Tribunal finds that the applicant’s country of nationality is Malaysia.

25. The applicant abandoned his claim to be at risk from drug dealers or the authorities and conceded that these claims were made up. 

26. The applicant said he still owed money in Malaysia but he did not indicate that he feared harm in connection with that debt. 

27. The applicant said at hearing that he came to Australia for the opportunity to make money, he applied for a protection visa in order to get work rights, and he wanted to stay in Australia because he had been here for more than 10 years and no longer felt a connection with Malaysia. 

28. The applicant did not claim that he feared being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.  On the evidence the Tribunal does not accept that the applicant faces a real chance of serious harm for any of the reasons specified in s 5J(1).  The applicant does not have a genuine or a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

29. The applicant was uncomfortable about the prospect of starting life over again in Malaysia but he did not claim, and on the evidence before it the Tribunal is not satisfied, that he faces a real risk of significant harm as defined in s 36(2A), i.e. arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that the applicant will suffer significant harm on return to Malaysia.

    CONCLUSION

30. 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) or s 36(2)(aa).

31. 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

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

    Genevieve Hamilton
    Member